Commonwealth: Public Service Legislation (Streamlining) Act 1986 (Cth)

Public Service Legislation (Streamlining) Act 1986 No. 153 of 1986 TABLE OF PROVISIONS PART I—PRELIMINARY Section 1. Short title 2. Commencement PART II—AMENDMENTS OF PUBLIC SERVICE ACT 1922 3. Principal Act 4. Repeal of section 5 5. Interpretation 6. Officers of the Parliament 7. Repeal of section 10 and substitution of new section— 10. Constitution of the Australian Public Service 8. Repeal of section 12 and substitution of new section— 12. Head of the Public Service Board 9. Acting appointments of members of the Board 10. Repeal of section 13 and substitution of new section— 13. Remuneration and allowances for members of the Board 11. Delegation by Board, &c. 12. Repeal of section 18 13. Joint Council 14. Equal employment opportunity programs 15. Industrial democracy plans 16. Secretaries of Departments 17. Delegation by Secretaries of Departments 18. Repeal of section 26a 19. Repeal of Division 3 of Part III 20. Interpretation 21. Application of merit principle, prohibition of patronage, &c. TABLE OF PROVISIONS—continued Section 22. Notification of certain matters related to appointment, transfer, promotion or advancement 23. Notification of vacancies in Senior Executive Service offices 24. Repeal of section 33c and substitution of new section— 33c. Unattached officers 25. Repeal of section 34 and substitution of new section— 34. Eligibility for appointment to the Service 26. Interpretation 27. Appointment of Secretaries of Departments 28. Fixed-term appointments 29. Superannuation benefits for fixed-term Secretaries of Departments 30. Acting appointments of Secretaries of Departments 31. Special appointments 32. Superannuation benefits for fixed-term Senior Executive Service officers 33. Repeal of section 47 and substitution of new section— 47. Appointments to be on probation 34. Repeal of section 47c and substitution of new section— 47c. Re-appointment of unsuccessful election candidates 35. Promotions to Senior Executive Service offices 36. Repeal of section 49d and substitution of new section— 49d. Day on which transfer or promotion takes effect 37. Subdivision d not to apply 38. Transfers and promotions 39. Repeal of section 50a and substitution of new section— 50a. Selection of officers for promotion 40. Appeals 41. Repeal of sections 50d, 50da, 50e, 50ea and 50eb and substitution of new sections— 50d. Determination of appeals 50daa. Review of non-appellable promotion decisions by Merit Protection and Review Agency 50da. Transfer or promotion on advice of Joint Selection Committee 50db. Transfer or promotion on advice of management-initiated Joint Selection Committee 50dc. Procedure of Joint Selection Committee 50e. Taking effect, &c., of promotions and transfers 42. Cancellation of promotion or transfer 43. Promotion appeal rights of certain officers 44. Transfers of officers and employees between Departments 45. Officer may apply to decline transfer within Department, &c. 46. Transfers and promotions to specified offices may be made in accordance with order of passing examinations 47. Promotion of officers who complete courses of training for special positions 48. Interpretation 49. Meaning of failure to fulfil duty as officer 50. Disciplinary action 51. Inquiries into misconduct 52. Convictions by courts 53. Suspension 54. Removal and variation of suspension 55. Appeals 56. Repeal of section 63h 57. Imprisonment 58. Application to unattached officers performing duty in Department 59. Repeal of section 63u 60. Attachment of salaries of officers 61. Forfeiture of office 62. Repeal of section 66b and substitution of new section— 66b. Re-appointment of officers deemed to have retired under section 66a 63. Leave of absence for recreation 64. Payment in lieu of recreation leave for certain officers TABLE OF PROVISIONS—continued Section 65. Payment to dependants on death 66. Leave of absence on account of illness 67. Other leave of absence 68. Repeal of section 75a 69. Termination of appointment 70. Insertion of new section— 76fa. Special benefits available to retiring unattached Secretaries 71. Repeal of section 76h and substitution of new section— 76h. Interpretation 72. Repeal of section 76k 73. Redeployment and retirement of Senior Executive Service officers 74. Appeal to Appeal Committee 75. Retirement with consent of officer on grounds of invalidity 76. Repeal of section 76p and substitution of new section— 76p. Unattachment of Senior Executive Service officers 77. Repeal of section 76q 78. Insertion of new Division in Part III— Division 8c—Redeployment and retirement of officers other than Secretaries of Departments and Senior Executive Service officers 76s. Interpretation 76t. Power to reduce officer's classification 76u. Retirement upon or after attaining minimum retiring age 76v. Retirement on ground of age 76w. Powers of Secretary and Board 76x. Board may issue administrative instructions and directions 76y. Unattachment of officers 76z. Appeals 79. Repeal of section 77 and substitution of new sections— 77. Interpretation 77a. State officer not disqualified from employment in the Service 80. Arrangements with State for services of State officer 81. Repeal of section 79 82. Agreement with State for performance of State duties by officer of the Service 83. Arrangements with State as to pension, &c., where officer employed in dual capacities 84. Insertion of new Division in Part III— Division 9a—Transfer of persons into or out of the Service 81a. Interpretation 81b. Appointment or employment of persons where functions to be performed by Commonwealth, &c. 81c. Transfer of persons where functions to be performed by Commonwealth authority 85. Repeal of Division 9f of Part III 86. Employment of fixed-term employees 87. Termination of employment 88. Repeal of section 82b and substitution of new section— 82b. Employment of unsuccessful election candidates 89. Determinations 90. Repeal of Division 11 of Part III 91. Cessation of leave without pay 92. Employment of officers by certain authorities, &c., upon transfer of functions 93. Persons to whom Division applies 94. Right to re-enter Service by way of transfer or promotion 95. Application for re-appointment to Service 96. Insertion of new section— 88a. Powers of Prime Minister TABLE OF PROVISIONS—continued Section 97. Protection of persons in respect of reports on officers or employees 98. Staff Suggestions Schemes 99. Performance of work outside the Service 100. Effect of appointments, &c., by Board, &c. 101. Regulations 102. Certain promotions deemed to be made under section 53 PART III—AMENDMENTS OF MERIT PROTECTION (AUSTRALIAN GOVERNMENT EMPLOYEES) ACT 1984 103. Principal Act 104. Interpretation 105. Functions of Agency 106. Promotion Appeal Committees 107. Constitution of Promotion Appeal Committees 108. Split decision 109. Insertion of new section— 15a. Frivolous or vexatious appeals, &c. 110. Constitution of Disciplinary Appeal Committees 111. Member ceasing to act 112. Split decision 113. Repeal of sections 22 and 23 and substitution of new sections— 22. Redeployment and Retirement Appeal Committees 23. Constitution of Redeployment and Retirement Appeal Committees 114. Member ceasing to act 115. Split decision 116. Insertion of new section— 26a. Enactment may provide for other appeals to be heard by Redeployment and Retirement Appeal Committees 117. Constitution of Re-appointment Review Committees 118. Split decision 119. Constitution of Re-integration Assessment Committees 120. Split decision 121. Members not subject to direction 122. Procedure of Review Committees 123. Enactments to be laid before Parliament 124. Delegation by Agency 125. Regulations PART IV—AMENDMENTS OF MEMBERS OF PARLIAMENT (STAFF) ACT 1984 126. Principal Act 127. Interpretation 128. Insertion of new section— 32. Powers may be exercised by authorised person PART V—REPEAL OF COMMONWEALTH EMPLOYEES (REDEPLOYMENT AND RETIREMENT) ACT 1979 129. Repeal PART VI—AMENDMENTS OF SUPERANNUATION ACT 1976 130. Principal Act 131. Early retirement—voluntary or involuntary retirement before attaining 60 years of age TABLE OF PROVISIONS—continued Section PART VII—AMENDMENTS OF ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 132. Principal Act 133. Schedule 2 PART VIII—AMENDMENTS OF COMMONWEALTH EMPLOYMENT SERVICE ACT 1978 134. Principal Act 135. Staff Public Service Legislation (Streamlining) Act 1986 No. 153 of 1986 An Act to amend certain legislation relating to the Australian Public Service, and for related purposes [Assented to 18 December 1986] BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows: PART I—PRELIMINARY Short title 1. This Act may be cited as the Public Service Legislation (Streamlining) Act 1986. Commencement 2. (1) Sections 1, 2, 3, 103, 126, 130, 132 and 134 shall come into operation on the day on which this Act receives the Royal Assent. (2) Section 20, sub-section 22 (2), sections 36, 38 to 41 and 44, sub-sections 45 (1) and (3) and sections 46, 102 and 105 shall come into operation on a day to be fixed by Proclamation. (3) Section 43, sub-section 45 (2), sections 70 to 76, 78, 87, 113, 115 and 116, sub-section 122 (2) and sections 123, 125, 129 and 131 shall come into operation on a day to be fixed by Proclamation. (4) Sections 110 and 112 shall come into operation on a day to be fixed by Proclamation. (5) The remaining provisions of this Act shall come into operation on the twenty-eighth day after the day on which this Act receives the Royal Assent. PART II—AMENDMENTS OF PUBLIC SERVICE ACT 1922 Principal Act 3. The Public Service Act 19221 is in this Part referred to as the Principal Act. Repeal of section 5 4. Section 5 of the Principal Act is repealed. Interpretation 5. Section 7 of the Principal Act is amended— (a) by omitting from sub-section (1) the definition of "Appeal Board" and substituting the following definitions: " 'Agency' means the Merit Protection and Review Agency established by the Merit Protection Act; 'authorised medical practitioner' means a medical practitioner authorised, by the Secretary to the Department of Health, to— (a) perform medical examinations; and (b) make recommendations in relation to redeployment or retirement, under this Act;"; (b) by omitting from sub-section (1) the definition of "Chief Officer"; (c) by inserting after the definition of "industrial award" in sub-section (1) the following definition: " 'Merit Protection Act' means the Merit Protection (Australian Government Employees) Act 1984;"; and (d) by omitting sub-sections (3) and (4) and substituting the following sub-section: "(3) An officer of a Department is an excess officer for the purposes of a provision of this Act if— (a) the officer is included in a class of officers employed in the Department, which class comprises a greater number of officers than is necessary for the efficient and economical working of the Department; (b) the services of the officer cannot be effectively used because of technological or other changes in the work methods of the Department or changes in the nature, extent or organisation of the functions of the Department; or (c) where the duties usually performed by the officer are to be performed at a different locality and the Board has determined that the provision applies in relation to the re-location of the performance of those duties—the officer is not willing to perform duties at that locality.". Officers of the Parliament 6. Section 9 of the Principal Act is amended by omitting from sub-section (2aa) and paragraph (2a) (b) "or Chief Officer". 7. Section 10 of the Principal Act is repealed and the following section is substituted: Constitution of the Australian Public Service "10. The Australian Public Service is constituted by— (a) the Secretaries specified in Schedule 3; (b) Senior Executive Service officers; (c) other officers; and (d) employees.". 8. (1) Section 12 of the Principal Act is repealed and the following section is substituted: Head of the Public Service Board "12. (1) The Governor-General shall appoint one of the 3 members of the Board to be the Head of the Public Service Board. "(2) The Head may be referred to as the Chairman or Chairwoman, as the Head prefers.". (2) The person who, immediately before the commencement of this section, held office as the Chairman holds office, after the commencement of this section, as the Head of the Public Service Board. (3) A reference in the Public Service Act 1922, in any other law or in any instrument to the Chairman of the Public Service Board shall, except in relation to matters that occurred before the commencement of this section, be read as a reference to the Head of the Public Service Board. Acting appointments of members of the Board 9. (1) Section 12a of the Principal Act is amended— (a) by omitting "Governor-General" (wherever occurring) and substituting "Prime Minister"; and (b) by omitting "Chairman" (wherever occurring) and substituting "Head of the Public Service Board". (2) An appointment by the Governor-General under section 12a of the Principal Act that was in force immediately before the commencement of this section shall, after that commencement, be deemed to be an appointment by the Prime Minister under section 12a of the Public Service Act 1922. 10. Section 13 of the Principal Act is repealed and the following section is substituted: Remuneration and allowances for members of the Board "13. Subject to the Remuneration Tribunals Act 1973, a member of the Board shall be paid— (a) such remuneration as is determined by the Remuneration Tribunal; and (b) such allowances as are prescribed.". Delegation by Board, &c. 11. (1) Section 16 of the Principal Act is amended— (a) by omitting sub-section (1a) and substituting the following sub-sections: "(1a) Where the Board delegates a power or function to a Secretary, the Secretary may, unless the instrument of delegation prohibits it, sub-delegate the power or function, by instrument in writing signed by the Secretary, to a person other than a person engaged as a consultant under section 4 of the Members of Parliament (Staff) Act 1984. "(1b) A Secretary is not empowered to sub-delegate a power or function under sub-section (1a) to a person who is not— (a) an officer or an employee; or (b) a person appointed to an office, under a law of the Commonwealth, by the Governor-General or a Minister, unless the Board approves, in writing, the delegation of the power or function to that person. "(1c) A power or function delegated under sub-section (1) or sub-delegated under sub-section (1a), when exercised or performed by the delegate or sub-delegate, shall, for all purposes, be deemed to have been exercised or performed by the Board."; (b) by omitting from sub-section (2) "under this section" and substituting "under sub-section (1)"; (c) by inserting before paragraph (2) (a) the following paragraph: "(aa) may be absolute or conditional;"; and (d) by omitting sub-sections (2a) and (3) and substituting the following sub-sections: "(3) A sub-delegation of a power or function by the Secretary of a Department under sub-section (1a)— (a) may be absolute or conditional; (b) does not prevent the exercise of the power or the performance of the function by the Board or by the Secretary; (c) subject to paragraph (d), continues in force notwithstanding any change in the membership of the Board or the appointment of another person as the Secretary of the Department; and (d) may be revoked by instrument in writing signed by the Secretary for the time being of the Department. "(4) Where- (a) the exercise of a power or function by the Board is dependent upon the opinion, belief or state of mind of the Board in relation to a matter; and (b) the power or function has been delegated or sub-delegated under this section, the power or function may be exercised by the delegate or sub-delegate upon the opinion, belief or state of mind of the delegate or sub-delegate, as the case may be, in relation to the matter. "(5) Where the Board has delegated a power or function to a person under sub-section (1)— (a) the Board may give directions to the delegate with respect to the exercise of the power or the performance of the function; and (b) if the delegate has sub-delegated the power or function under sub-section (1a), the delegate— (i) shall, if the Board has given a direction to the delegate under paragraph (a) with respect to the exercise of the power or the performance of the function, give a corresponding direction to the sub-delegate; and (ii) may, subject to any direction given to the delegate by the Board under paragraph (a), give directions to the sub-delegate with respect to the exercise of the power or the performance of the function.". (2) An appointment to the Service made or purported to be made, before the commencement of this section, by a person acting pursuant to a delegation by the Board is, and shall be deemed to have been, for all purposes, as valid as if it had been made by the Board. Repeal of section 18 12. Section 18 of the Principal Act is repealed. Joint Council 13. Section 19a of the Principal Act is amended— (a) by omitting from sub-section (1) "and of Classification Committees"; and (b) by omitting sub-section (4). Equal employment opportunity programs 14. Section 22b of the Principal Act is amended— (a) by inserting in sub-section (13) ", subject to such modifications (if any) as are prescribed," after "shall"; (b) by omitting from paragraph (13) (d) "(7),"; (c) by omitting from sub-section (14) "and adaptations"; and (d) by omitting sub-section (15) and substituting the following sub-section: "(15) In sub-sections (13) and (14), 'modifications' includes additions, omissions and substitutions.". Industrial democracy plans 15. Section 22c of the Principal Act is amended— (a) by inserting in sub-section (12) ", subject to such modifications (if any) as are prescribed," after "shall"; (b) by omitting from sub-section (13) "and adaptations" and "by the regulations"; and (c) by omitting sub-section (14) and substituting the following sub-section: "(14) In sub-sections (12) and (13), 'modifications' includes additions, omissions and substitutions.". Secretaries of Departments 16. Section 25 of the Principal Act is amended— (a) by omitting sub-sections (3), (5) and (5a); and (b) by omitting from sub-section (4) "Chairman" and substituting "Head of the Public Service Board". Delegation by Secretaries of Departments 17. Section 26 of the Principal Act is amended— (a) by omitting sub-section (3) and substituting the following sub-sections: "(3) A delegation of a power or function by the Secretary of a Department under sub-section (1)— (a) may be absolute or conditional; (b) does not prevent the exercise of the power or the performance of the function by the Secretary; (c) subject to paragraph (d), continues in force notwithstanding the appointment of another person as the Secretary of the Department; and (d) may be revoked by instrument in writing signed by the Secretary for the time being of the Department. "(3a) Where a Secretary has delegated a power or function to a person under sub-section (1), the Secretary may give directions to the delegate with respect to the exercise of the power or the performance of the function."; and (b) by omitting sub-section (5). Repeal of section 26a 18. (1) Section 26a of the Principal Act is repealed. (2) A reference in any Act, in any instrument under an Act or in any industrial award to a Chief Officer shall, except in relation to matters that occurred before the commencement of this section, be read as a reference to the relevant Secretary. (3) Where, immediately before the commencement of this section, a person was entitled to exercise a power or perform a function by virtue of— (a) being a Chief Officer under section 26a of the Principal Act; or (b) holding, or performing all or part of the duties of, a prescribed office under that section, the person may, after that commencement, continue to exercise the power or perform the function as if the power or function had been delegated to the person by the relevant Secretary under the Public Service Act 1922. (4) Where, immediately before the commencement of this section, a person was entitled to exercise a power or perform a function by virtue of a delegation, authorisation or appointment made by a Chief Officer, the person may, after that commencement, continue to exercise the power or perform the function as if the delegation, authorisation or appointment had been made by the relevant Secretary under the Public Service Act 1922. (5) Where sub-section (3) or (4) empowers a person to continue to exercise a power or function as if the power or function had been delegated to the person by the relevant Secretary or as if the relevant Secretary had authorised or appointed the person to exercise the power or perform the function, the relevant Secretary shall be deemed for all purposes to have so delegated the power or function or so authorised or appointed the person. Repeal of Division 3 of Part III 19. (1) Division 3 of Part III of the Principal Act is repealed. (2) A determination in force under section 32 of the Principal Act immediately before the commencement of this section shall be deemed to have been made under sub-section 33a (1a) of the Public Service Act 1922. Interpretation 20. Section 33aaa of the Principal Act is amended— (a) by inserting after the definition of "Committee" in sub-section (1) the following definition: "non-appellable promotion' means a promotion under section 50 to an office having— (a) a classification equal to or higher than the classification of Clerical Administrative Class 9; or (b) a classification equivalent to a classification referred to in paragraph (a), being a classification prescribed, or included in a class of classifications prescribed, by the regulations, being a promotion notified in the Gazette after the commencement of section 20 of the Public Service Legislation (Streamlining) Act 1986"; (b) by omitting "or 50da (8)" from sub-paragraph (b) (i) of the definition of "prescribed day" in sub-section (1) and substituting ", 50da (8) or 50db (8)"; and (c) by omitting paragraphs (4) (e) and (f) and substituting the following word and paragraph: "or (e) the promotion against which the appeal was made lapses under regulations made under section 50e.". Application of merit principle, prohibition of patronage, &c. 21. Section 33 of the Principal Act is amended— (a) by omitting from sub-paragraph (1) (b) (ii) "and other attributes" and substituting ", personal qualities and potential for development"; (b) by omitting sub-section (2) and substituting the following sub-section: "(2) Without limiting the generality of sub-section (1), powers under this Act shall be exercised without patronage or favouritism."; (c) by omitting from sub-section (3) "in accordance with procedures that preclude" and substituting "without"; (d) by omitting from paragraph (3) (b) "and" and substituting "or"; and (e) by adding at the end the following sub-section: "(6) A reference in this section to the exercise of a power under this Act includes a reference to the making of a report or recommendation in relation to the exercise of such a power.". Notification of certain matters related to appointment, transfer, promotion or advancement 22. (1) Section 33a of the Principal Act is amended— (a) by inserting after sub-section (1) the following sub-section: "(1a) Where a scale of rates of salary is applicable to an office, or offices included in a class of offices, the Board may, by instrument in writing published in the Gazette— (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 the officer has complied with such conditions as are specified in the instrument."; and (b) by omitting sub-section (2) and substituting the following sub-section: "(2) A qualification or condition set out in a notification under paragraph (1) (c) or (d), or a condition set out in an instrument under sub-section (1a), may be a qualification or condition that is defined or expressed by reference to the opinion of the Board, or the opinion of a person specified in the notification or instrument, in relation to a particular matter.". (2) Section 33a of the Principal Act is further amended— (a) by inserting after paragraph (1) (d) the following paragraph: "(da) for the purpose of section 53, an examination or test in relation to offices included in a specified class of offices;"; and (b) by omitting paragraph (1) (e) and substituting the following paragraph: "(e) the circumstances in which a vacancy may be filled by a transfer or promotion under section 50db or 53; or". Notification of vacancies in Senior Executive Service offices 23. Section 33aa of the Principal Act is amended by inserting after sub-section (3) the following sub-section: "(3a) Sub-sections (1) and (2) do not apply to a vacancy in a Senior Executive Service office in a case where the vacancy occurred, after a previous vacancy in the office was filled by the appointment, promotion or transfer of a person to the office, without that person having started to perform the duties of the office but, if the Board so directs, the relevant Secretary shall comply with sub-section (2) in relation to the vacancy.". 24. Section 33c of the Principal Act is repealed and the following section is substituted: Unattached officers "33c. (1) The Secretary of a Department may, with the consent in writing of an officer who holds an office in the Department, declare, in writing, that the officer shall, on a day specified in the declaration, become an unattached officer and, if the Secretary does so, the office so held by the officer becomes vacant on the day so specified. "(2) Except as otherwise directed by the Board under this or another provision of this Act, a person who is, or is deemed to be, an unattached officer of the Service is included in the Department in which the person last held an office.". 25. Section 34 of the Principal Act is repealed and the following section is substituted: Eligibility for appointment to the Service "34. A person is not eligible for appointment to the Service unless the Board is satisfied that the person is a fit and proper person to be an officer of the Service.". Interpretation 26. Section 35 of the Principal Act is amended by omitting the definition of "Chairman". Appointment of Secretaries of Departments 27. Section 36 of the Principal Act is amended— (a) by omitting from sub-section (1) "by instrument signed by him" and substituting "in writing"; (b) by omitting from sub-section (3) "unless he has received a report in writing from the Chairman" and substituting "unless the Prime Minister has received a report in writing from the Head of the Public Service Board"; (c) by omitting from sub-section (4) "Chairman" and substituting "Head of the Public Service Board"; and (d) by omitting from sub-section (5) "his" and substituting "the". Fixed-term appointments 28. Section 37 of the Principal Act is amended by omitting from sub-section (12) "unless he has received a report in writing from the Chairman" and substituting "unless the Prime Minister has received a report in writing from the Head of the Public Service Board". Superannuation benefits for fixed-term Secretaries of Departments 29. Section 38 of the Principal Act is amended— (a) by omitting sub-sections (3) and (4) and substituting the following sub-sections: "(3) The Board may— (a) at the time when a relevant person is appointed to an office of Secretary under a fixed-term appointment within the meaning of section 37; or (b) as soon as practicable after the making of the appointment, make a determination in writing in relation to the provision to the person of superannuation benefits or benefits in the nature of superannuation benefits. "(4) Without limiting the generality of sub-section (3), a determination under that sub-section in relation to a relevant person may provide that the Superannuation Act 1976 applies in relation to the person as if the person became an eligible employee within the meaning of that Act on a specified day, which may be on or after, or not earlier than 3 months before, the date of the determination, and where a determination so provides, the Superannuation Act 1976 has effect accordingly."; and (b) by adding at the end the following sub-section: "(6) The Board is not empowered to make a determination for the purposes of sub-section (3) except in accordance with arrangements approved by the Minister for Finance.". Acting appointments of Secretaries of Departments 30. (1) Section 39 of the Principal Act is amended— (a) by omitting from sub-sections (1) and (5) "Governor-General" and substituting "Prime Minister"; (b) by omitting from sub-section (1) ", by instrument, signed by him," and substituting ", in writing,"; and (c) by omitting sub-section (4) and substituting the following sub-section: "(4) The Prime Minister may at any time, in writing, terminate an appointment under sub-section (1).". (2) An appointment by the Governor-General under section 39 of the Principal Act that was in force immediately before the commencement of this section shall, after that commencement, be deemed to be an appointment by the Prime Minister under section 39 of the Public Service Act 1922. Special appointments 31. Section 43 of the Principal Act is amended— (a) by omitting from sub-section (2) ", after obtaining a report from the Secretary of the Department concerned,"; and (b) by omitting from sub-section (3) "report and". Superannuation benefits for fixed-term Senior Executive Service officers 32. Section 45 of the Principal Act is amended by omitting sub-section (4) and substituting the following sub-section: "(4) Without limiting the generality of sub-section (3), a determination under that sub-section in relation to a relevant person may provide that the Superannuation Act 1976 applies in relation to the person as if the person became an eligible employee within the meaning of that Act on a specified day, which may be on or after, or not earlier than 3 months before, the date of the determination, and where a determination so provides, the Superannuation Act 1976 has effect accordingly.". 33. (1) Section 47 of the Principal Act is repealed and the following section is substituted: Appointments to be on probation "47. (1) Subject to sub-section (2), the appointment of a person to the Service as an officer (other than a Secretary) shall, in the first instance, be an appointment on probation. "(2) The Board may appoint a person to the Service without probation, but— (a) shall not so appoint a person who is not an Australian citizen, except in accordance with arrangements approved by the Prime Minister; and (b) shall not so appoint a person unless the Board is satisfied— (i) after the person has undergone a medical examination approved by the Board, as to the officer's health and physical fitness; or (ii) that in the circumstances it is unnecessary to require the person to undergo a medical examination. "(3) The Board may, at any time within the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment. "(4) The relevant Secretary may, at any time after an officer is appointed to the Service on probation and before the appointment is confirmed, terminate the appointment. "(5) The relevant Secretary may, at any time after the end of the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment. "(6) Where, at the end of the period of 12 months after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated, the relevant Secretary shall, as soon as practicable, confirm or terminate the appointment. "(7) Where, at the end of the period of 2 years after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated, the appointment shall (unless the officer is not an Australian citizen) be deemed to have been confirmed. "(8) Where an officer appointed to the Service on probation holds a training office— (a) the reference in sub-section (5) to the period of 6 months after an officer is appointed to the Service shall be read as a reference to the period starting when the officer is appointed and ending when the officer completes the course of training concerned; (b) the reference in sub-section (6) to the period of 12 months after an officer is appointed to the Service shall be read as a reference to the period starting when the officer is appointed and ending 6 months after the officer completes the course of training concerned; and (c) the reference in sub-section (7) to the period of 2 years after an officer is appointed to the Service shall be read as a reference to the period starting when the officer is appointed and ending 12 months after the officer completes the course of training concerned. "(9) The Board shall not, under sub-section (3), and the Secretary shall not, under sub-section (5) or (6), confirm the appointment to the Service of an officer unless the Board or Secretary, as the case may be, is satisfied, after the officer has undergone a medical examination approved by the Board, as to the officer's health and physical fitness. "(10) The Board shall not, under sub-section (3), and the Secretary shall not, under sub-section (5) or (6), confirm the appointment to the Service of an officer who is not an Australian citizen, except in accordance with arrangements approved by the Prime Minister. "(11) A Secretary may, under sub-section (4) or (6), terminate an officer's appointment to the Service on any of the following grounds: (a) that the Secretary is not satisfied, after receiving a report from an authorised medical practitioner, as to the officer's health and physical fitness; (b) that the Secretary considers, after receiving a report from the officer's supervisor or another appropriate officer, that the manner of the officer's performance of duties has not been satisfactory; (c) that the Secretary considers that the officer is not a fit and proper person to remain an officer of the Service; (d) that the Secretary is satisfied that the officer is an excess officer; (e) in the case of an officer who is not an Australian citizen, that the Secretary is satisfied— (i) that the person has been refused Australian citizenship; (ii) that the person is unlikely to be granted Australian citizenship within a reasonable time; or (iii) that the person is not seeking a grant of Australian citizenship with appropriate diligence. "(12) An officer whose appointment has been terminated is not, unless the Board otherwise determines, eligible for appointment to the Service within the period of 12 months immediately after the termination. "(13) In this section— 'appointment' includes re-appointment; 'training office' means an office that is specified in a determination made by the Board under sub-section 53a (1) as an office the occupant of which is required to undergo a course of training lasting at least 12 months for the purpose of enabling the occupant to perform duties that require professional, technical or other knowledge.". (2) Where— (a) before the commencement of this section, a person was appointed to the Service on probation under section 47 of the Principal Act; and (b) immediately before that commencement, the person's appointment had not been confirmed or annulled, section 47 of the Public Service Act 1922 as enacted by sub-section (1) of this section shall be deemed to have been in force, in relation to that person, on and from the day when the person was so appointed and the person shall be deemed to have been appointed to the Service on probation under section 47 as so deemed to have been in force. (3) Where— (a) a person who was not an Australian citizen was engaged as an employee under section 82 of the Public Service Act 1922 as in force before 1 July 1986, or engaged as a fixed-term employee under section 82ae of the Public Service Act 1922, on the understanding that the person would be appointed as an officer on being granted Australian citizenship; and (b) immediately before the commencement of this section, the person was still so engaged and had not been granted Australian citizenship, section 47 of the Public Service Act 1922 as enacted by sub-section (1) of this section shall be deemed to have been in force, in relation to that person, on and from the day when the person was so engaged, and the person shall be deemed to have been appointed to the Service on probation under section 47 as so deemed to have been in force. 34. (1) Section 47c of the Principal Act is repealed and the following section is substituted: Re-appointment of unsuccessful election candidates "47c. (1) Where the Board is satisfied that— (a) a person who was an officer— (i) resigned in order to become a candidate for election as a member of a House of the Parliament of the Commonwealth or of a State, of the Legislative Assembly for the Northern Territory or of a prescribed legislative or advisory body for another Territory; (ii) was a candidate at the election; and (iii) failed to be elected; and (b) the resignation took effect not earlier than 6 months before the date on which nominations for the election closed, the Board shall, upon application by the person within 2 months after the declaration of the result of the election, re-appoint the person to the Service to fill the office occupied by the person immediately before resigning or an equivalent office or, if such an office is not available, as an unattached officer having the same classification as the person had immediately before resigning. "(2) The reference in sub-section (1) to the declaration of the result of the election shall, in relation to an election the result of which is challenged, be read as a reference to the determination of the challenge by a court of disputed returns or the lapsing of the challenge, whichever happens first. "(3) Where— (a) a person who resigned from the Service as mentioned in sub-paragraph (1) (a) (i) was appointed to the Service on probation and, at the time of the resignation, the person's appointment had not been confirmed; and (b) the person is re-appointed to the Service under this section, section 47 applies in relation to the person as if the person had not resigned but, for the purpose of calculating periods for the purposes of that section, the period between the person's resignation and the re-appointment under this section shall be disregarded. "(4) In this section, 'officer' does not include a Secretary or an unattached Secretary.". (2) Section 47c of the Public Service Act 1922 as enacted by sub-section (1) of this section applies in relation to any resignation of a person, before or after the commencement of this section, in order to become a candidate at an election, unless the result of the election was declared more than 2 months before that commencement. Promotions to Senior Executive Service offices 35. Section 49b of the Principal Act is amended by inserting after sub-section (3) the following sub-section: "(3a) For the purpose of satisfying itself in relation to the matters specified in paragraph (3) (a), the Board may, if it considers it appropriate, in relation to a vacancy in an office occurring, after a previous vacancy in the office was filled by the appointment, promotion or transfer of a person to the office, without that person having started to perform the duties of the office, have regard to the procedures followed in relation to the previous vacancy and, where it does so, the Board need not have regard to any procedures followed in relation to the first-mentioned vacancy.". 36. (1) Section 49d of the Principal Act is repealed and the following section is substituted: Day on which transfer or promotion takes effect "49d. (1) The transfer of an officer under sub-section 49 (1) takes effect— (a) if the officer is not entitled to apply, or does not apply, under sub-section 52 (1), for permission to decline the transfer, or the officer does so apply and the Board or the relevant Secretary, as the case requires, notifies the officer, not later than the prescribed day, that permission is refused—on the prescribed day; or (b) if the officer applies under sub-section 52 (1) for permission to decline the transfer and the Board or the relevant Secretary, as the case requires, notifies the officer, after the prescribed day, that permission is refused—on the day when the officer is so notified. "(2) The promotion of an officer under sub-section 49b (1) takes effect on the prescribed day, and salary at the rate applicable to the office concerned is payable to the officer on and from that day.". (2) Notwithstanding the repeal made by sub-section (1), section 49d of the Principal Act continues to apply in relation to promotions and transfers made before the commencement of this section. Subdivision D not to apply 37. Section 49e of the Principal Act is amended by inserting "51," after "sections". Transfers and promotions 38. Section 50 of the Principal Act is amended— (a) by omitting sub-sections (1) and (2) and substituting the following sub-section: "(1) The Secretary of a Department shall not, except in prescribed circumstances, fill, by promotion, a vacant office in the Department (other than an office of Secretary or a Senior Executive Service office) unless the Secretary has caused notification of the vacancy to be given in the Gazette"; (b) by omitting from sub-sections (3) and (4) "vacancy" (wherever occurring) and substituting "vacant office"; and (c) by omitting sub-section (6). 39. (1) Section 50a of the Principal Act is repealed and the following section is substituted: Selection of officers for promotion "50a. (1) For the purpose of exercising the power under sub-section 50 (3) or section 50da or 50db to promote an officer to fill a vacant office, a Secretary shall select the officer who is, in the opinion of the Secretary, the most efficient of the officers who have applied for promotion to the vacant office. "(2) For the purpose of forming an opinion as to the most efficient of the officers who have applied for promotion to a vacant office, the Secretary shall have regard to— (a) the abilities, qualifications, experience, standard of work performance and personal qualities of each officer, to the extent that the Secretary considers that those matters are relevant to the performance of the duties of the office; and (b) the potential of each officer for further career development in the Service, and the ability of each officer to perform the duties of other offices in the Department of the same or equal classification, to the extent (if any) that the Secretary considers that those matters are relevant to the selection of an officer to hold the office. "(3) A reference in sub-section (2) to the abilities, qualifications, experience, standard of work performance, personal qualities, potential for further career development in the Service, or ability to perform the duties of other offices in a Department is, in relation to an officer who is a returned soldier or who is or has been absent on specified defence service, a reference to the abilities, qualifications, experience, standard of work performance, personal qualities, potential for future career development in the Service, or ability to perform the duties of the offices concerned that, in the opinion of the Secretary, the officer would have had but for the absence of the officer on active service or on specified defence service.". (2) Notwithstanding the repeal made by sub-section (1), section 50a of the Principal Act continues to apply in relation to— (a) the filling of a vacancy notified in the Gazette before the commencement of this section; and (b) the filling of a vacancy that was not notified in the Gazette, where the interviewing of applicants for promotion or transfer to the vacant office began before the commencement of this section. Appeals 40. Section 50b of the Principal Act is amended— (a) by inserting in sub-section (1) ", subject to sub-sections (1a) and (1b)," after "may"; and (b) by inserting after sub-section (1) the following sub-sections: "(1a) Except in prescribed circumstances, an officer is not entitled to appeal against a particular promotion unless the officer applied for that promotion. "(1b) An officer is not entitled to appeal against a non-appellable promotion.". 41. (1) Sections 50d, 50da, 50e, 50ea and 50eb of the Principal Act are repealed and the following sections are substituted: Determination of appeals "50d. (1) Where an appeal is or appeals are made under section 50b in respect of a promotion, the Committee shall form an opinion as to the most efficient of the officers concerned, namely the officer promoted and the officer or officers who has or have appealed. "(2) For the purpose of forming an opinion as to the most efficient of the officers concerned, the Committee shall have regard to— (a) the abilities, qualifications, experience, standard of work performance and personal qualities of each officer, to the extent that the Committee considers that those matters are relevant to the performance of the duties of the office; and (b) if and only if the Secretary who made the promotion has indicated that, for the purpose of forming an opinion under section 50a, the Secretary had regard to the potential of officers for further career development in the Service, or the ability of officers to perform the duties of other offices in the Department of the same or equal classification—that matter. "(3) A reference in sub-section (2) to the abilities, qualifications, experience, standard of work performance, personal qualities, potential for further career development in the Service, or ability to perform the duties of other offices in a Department is, in relation to an officer who is a returned soldier or who is or has been absent on specified defence service, a reference to the abilities, qualifications, experience, standard of work performance, personal qualities, potential for future career development in the Service, or ability to perform the duties of the offices concerned that, in the opinion of the Committee, the officer would have had but for the absence of the officer on active service or on specified defence service. "(4) Where the Committee has formed an opinion as to the most efficient of the officers concerned, the Committee shall— (a) unless paragraph (b) applies—allow or disallow the appeal or appeals so as to give effect to its opinion; or (b) if the Committee has also formed the opinion that none of the officers concerned is capable of efficiently performing the duties of the office—disallow the appeal or appeals and cancel the promotion. "(5) Where an appeal against a promotion is allowed— (a) the promotion is, by force of this sub-section, cancelled; and (b) the officer whose appeal is allowed is, by force of this sub-section, promoted to the office. "(6) Where a promotion is cancelled under sub-section (4) or by force of sub-section (5), or an officer is promoted to an office by force of sub-section (5), the relevant Secretary shall cause notification of the cancellation, or of the promotion, to be given in the Gazette. Review of non-appellable promotion decisions by Merit Protection and Review Agency "50daa. (1) An officer who applied unsuccessfully for a non-appellable promotion may, within the prescribed period, apply to the Agency for review of the promotion on the ground that it would be unreasonable for the promotion to stand because of— (a) a breach of section 33 in connection with the making of the promotion; or (b) a serious defect in the selection process. "(2) An application for review of a promotion shall be in writing and shall include particulars of the alleged breach of section 33 or the alleged defect in the selection process. "(3) Where an application is made to the Agency for review of a promotion, the Agency shall— (a) make such inquiries as it considers necessary to determine whether a recommendation should be made under sub-section (4) in relation to the promotion; and (b) make a decision in writing either— (i) affirming the promotion; or (ii) making a recommendation under sub-section (4) in relation to the promotion. "(4) Where an application is made to the Agency for review of a promotion, the Agency shall, if it is satisfied that it would be unreasonable for the promotion to stand because of— (a) a breach of section 33 in connection with the making of the promotion; or (b) a serious defect in the selection process, recommend to the Secretary who made the promotion that the promotion be cancelled. "(5) The Agency shall cause a copy of its decision to be given to— (a) the officer who made the application; (b) the officer promoted; and (c) the Secretary who made the promotion. "(6) Where the Agency recommends to the Secretary that a promotion be cancelled, the Secretary— (a) shall, having regard to the recommendation, reconsider the promotion; and (b) may cancel the promotion. "(7) Where a Secretary cancels a promotion under sub-section (6)— (a) the officer promoted shall, for all purposes, be treated as having held the office concerned during the period beginning when the promotion took effect and ending when the promotion is cancelled; and (b) upon the cancellation of the promotion, the Secretary shall transfer the officer to an office in the Secretary's Department having a classification that is the same as, or equal to, the classification that the officer had immediately before the promotion took effect, and, if necessary, the Secretary shall create such an office for the purpose. "(8) The Agency shall refuse to consider or further consider an application for review of a promotion if the Agency is satisfied that the application is frivolous or vexatious or was not made in good faith. "(9) Where 2 or more applications are made to the Agency for review of the same promotion, the Agency may consider those applications concurrently. "(10) Division 7 of Part II of the Merit Protection Act applies in relation to a review under this section of a promotion in the same manner as it applies to a review of a decision under Division 3 of Part II of that Act. Transfer or promotion on advice of Joint Selection Committee "50da. (1) Subject to sub-section (4) and to sub-section 50 (4) and section 50j, the Secretary of a Department in which an office (other than an office of Secretary or a Senior Executive Service office) is vacant may, instead of transferring or promoting an officer to fill the vacancy under section 50, transfer or promote an officer to fill the vacancy under this section. "(2) A transfer or promotion of an officer under this section shall be a transfer or promotion made in accordance with the advice of a Joint Selection Committee. "(3) Where a Secretary proposes that a vacancy be filled by a transfer or promotion under this section, the Secretary shall— (a) give notice in writing of the proposal to the organisation that is, in accordance with the regulations, the principal relevant staff organisation in relation to the office; and (b) if there is another relevant staff organisation or there are other relevant staff organisations—give notice in writing of the proposal to the other relevant staff organisation or organisations, such notice to include a statement to the effect that a relevant staff organisation may, by notice in writing to the Secretary before the expiration of the period prescribed by the regulations for the purposes of this paragraph, object to the proposal. "(4) Where the principal relevant staff organisation consents to the proposal and— (a) there is no other relevant staff organisation; or (b) in a case to which paragraph (a) does not apply—no other relevant staff organisation objects to the proposal before the expiration of the period referred to in paragraph (3) (b), the Secretary shall— (c) cause notification of the vacancy, being a notification indicating that the Secretary proposes that the vacancy be filled by a transfer or promotion under this section, to be given in the Gazette; and (d) arrange for the establishment of a Joint Selection Committee for the purpose of giving advice to the Secretary with respect to the filling of the vacancy. "(5) A Joint Selection Committee shall be constituted for the purposes of this section by— (a) a Convenor nominated by the Agency; (b) a person nominated by the Secretary of the Department in which the vacancy exists; and (c) a person nominated by the organisation that is, in accordance with the regulations, the principal relevant staff organisation in relation to the office. "(6) If, for any reason, a Secretary— (a) is unable to arrange for the establishment of a Joint Selection Committee for the purpose of giving advice to the Secretary with respect to the filling of the vacancy; or (b) having arranged for the establishment of a Joint Selection Committee for such a purpose, is unwilling to transfer or promote an officer in accordance with the advice of the Committee, the Secretary may transfer or promote an officer to fill the vacancy under section 50. "(7) A promotion of an officer under this section in accordance with the advice of a Joint Selection Committee— (a) shall be notified in the Gazette as a promotion made in accordance with the advice of a Joint Selection Committee; and (b) is not subject to appeal under section 50b or review under section 50daa. "(8) An officer who is transferred under sub-section (1) shall be given notice in writing of the transfer. "(9) Where a Joint Selection Committee has been constituted for the purpose of giving advice to a Secretary with respect to the filling of a vacancy under this section but, before the Committee gives advice with respect to the filling of that vacancy, a member of the Committee ceases to take part in the deliberations of the Committee, the Committee shall be reconstituted by the remaining 2 members and another member appointed or nominated in accordance with sub-section (5). "(10) For the purpose of giving advice to a Secretary with respect to the filling of a vacancy under this section, where the members of the Committee do not concur in advice— (a) if a majority of the members concur in the advice—the advice of the majority shall be deemed to be the advice of the Committee; and (b) in any other case—the advice of the Convenor of the Committee shall be deemed to be the advice of the Committee. Transfer or promotion on advice of management-initiated Joint Selection Committee "50db. (1) Subject to sub-sections (2) and (3), sub-section 50 (4) and section 50j, the Secretary of a Department in which an office (other than an office of Secretary or a Senior Executive Service office) is vacant may, instead of transferring or promoting an officer to fill the vacancy under section 50 or 50da, transfer or promote an officer to fill the vacancy under this section. "(2) A vacancy shall not be filled by a transfer or promotion under this section except in circumstances of a kind specified by the Board in a notification under paragraph 33a (1) (e). "(3) Where a Secretary proposes that a vacant office be filled by a transfer or promotion under this section, the Secretary shall— (a) cause notice of the vacancy, and of the Secretary's proposal that the office be filled by a transfer or promotion under this section, to be given in the Gazette; (b) notify the organisation that is, under the regulations, the principal relevant staff organisation of the Secretary's proposal that the office be filled by a transfer or promotion under this section; and (c) arrange for the establishment of a Joint Selection Committee for the purpose of giving advice to the Secretary with respect to the filling of the office. "(4) A Joint Selection Committee shall be constituted for the purposes of this section by— (a) a Convenor nominated by the Agency; (b) a person nominated by the Secretary of the Department in which the vacant office exists; and (c) if, within the prescribed period after being notified under paragraph (3) (b), the principal relevant staff organisation nominates a person—that person. "(5) A promotion or transfer of an officer made in accordance with the unanimous advice of the members of a Joint Selection Committee constituted for the purpose of this section shall be deemed to have been made under section 50da, and a promotion so made is not subject to appeal under section 50b or review under section 50daa. "(6) Where a Joint Selection Committee constituted for the purposes of this section gives advice to a Secretary with respect to the filling of a vacant office and— (a) the Secretary promotes or transfers an officer to fill the vacant office otherwise than in accordance with the advice; or (b) the advice is not unanimous, but the Secretary transfers or promotes an officer to fill the vacant office, the promotion or transfer shall be deemed to have been made under section 50, and a promotion so made is subject to appeal under section 50b or review under section 50daa, as the case requires. "(7) A promotion of an officer under this section shall be notified in the Gazette, and the notice in the Gazette shall state whether or not the promotion is subject to appeal under section 50b or review under section 50daa. "(8) An officer who is transferred as mentioned in this section shall be given notice in writing of the transfer. "(9) Where a Joint Selection Committee has been constituted for the purpose of giving advice under this section but, before the Committee gives that advice, the Convenor ceases to take part in the deliberations of the Committee, the Committee shall be reconstituted by the remaining members or member and another Convenor nominated by the Agency. "(10) Where a Joint Selection Committee has been constituted for the purpose of giving advice under this section but, before the Committee gives that advice, the member of the Committee nominated under paragraph (4) (b) ceases to take part in the deliberations of the Committee— (a) if, within the prescribed period after the member so ceases to take part, the Secretary nominates another person—the Committee shall be reconstituted by the remaining members or member and that other person; or (b) in any other case, if there are 2 members of the Committee remaining—the Committee shall be reconstituted by the remaining members. "(11) Where a Joint Selection Committee has been constituted for the purpose of giving advice under this section but, before the Committee gives that advice, the member of the Committee nominated under paragraph (4) (c) (if any) ceases to take part in the deliberations of the Committee, the Secretary shall notify the principal relevant staff organisation that the member has ceased to take part in those deliberations and— (a) if, within the prescribed period after being so notified by the Secretary, the principal relevant staff organisation nominates another person—the Committee shall be reconstituted by the remaining members and that other person; or (b) in any other case—the Committee shall be reconstituted by the remaining members. Procedure of Joint Selection Committee "50dc. (1) A Joint Selection Committee established for the purpose of giving advice to a Secretary with respect to the filling of a vacant office under section 50da or 50db shall assess the claims of the applicants for promotion or transfer to the office in such manner as the Committee considers necessary to establish their relative efficiency. "(2) A Joint Selection Committee shall conduct its proceedings with as little formality and technicality, and as quickly, as a proper consideration of the applications permits. "(3) Where a Joint Selection Committee is reconstituted pursuant to sub-section 50da (9) or 50db (9), (10) or (11), the Committee as reconstituted may have regard to the evidence given, the argument adduced and the reasons for any decision given during proceedings before the Committee as previously constituted. "(4) A transfer or promotion made under section 50da or 50db shall not be called in question because of a defect or irregularity in connection with the nomination of a member of the Joint Selection Committee. "(5) A member of a Joint Selection Committee, while acting as such, is not subject to direction by any other person or by any body or authority other than a court. Taking effect, &c., of promotions and transfers "50e. (1) A promotion or transfer of an officer to an office takes effect as provided by the regulations. "(2) Where a promotion under section 50 or 50da of an officer to an office takes effect, salary at the rate applicable to that office is payable to the officer on and from the prescribed day. "(3) Where, upon the determination of an appeal against the promotion under section 50 of an officer to an office, another officer is promoted to that office by force of sub-section 50d (5), salary at the rate applicable to that office is payable to that other officer on and from the prescribed day in respect of the first-mentioned promotion.". (2) Notwithstanding the repeal made by sub-section (1)— (a) section 50d of the Principal Act continues to apply in relation to— (i) appeals against promotions to vacant offices the vacancies in which were notified; and (ii) promotions notified, before the commencement of this section; and (b) section 50da of the Principal Act continues to apply in relation to a Joint Selection Committee constituted before that repeal was made as if that repeal had not been made. Cancellation of promotion or transfer 42. Section 50g of the Principal Act is amended by omitting sub-section (1) and substituting the following sub-section: "(1) Before the promotion or transfer of