Queensland: Public Sector Act 2022 (Qld)

Public Sector Act 2022 An Act to provide for the administration of the public sector, the employment arrangements for public sector employees, a fair and responsive public sector and particular matters relating to individuals other than public sector employees Chapter 1 Preliminary Part 1 Introduction 1 Short title This Act may be cited as the Public Sector Act 2022. 2 Commencement This Act commences on 1 March 2023. 3 Main purpose of Act The main purpose of this Act is to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State. 4 How main purpose is primarily achieved The main purpose of this Act is to be achieved primarily by— (a) ensuring the public sector is responsive to the community it serves by— (i) promoting a spirit of service to the community; and (ii) providing for the appointment of chief executives and the employment of senior executives to provide the public service with high-performing, future-focused leadership; and (iii) providing for the employment and administration of the public service; and (iv) taking measures to promote the effectiveness and efficiency of public sector entities; and (v) establishing the Public Sector Commission and providing for the appointment of a Public Sector Commissioner to enhance the public sector's human resource management and capability; and (vi) establishing the Public Sector Governance Council to provide oversight of public sector governance; and (vii) establishing a shared responsibility for the effective stewardship of the public sector between the Public Sector Governance Council, the Public Sector Commissioner and chief executives of departments; and (b) creating a public sector that supports the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples by— (i) ensuring public sector entities recognise the importance to Aboriginal peoples and Torres Strait Islander peoples of the right to self-determination; and (ii) ensuring public sector entities actively promote the perspectives of Aboriginal peoples and Torres Strait Islander peoples; and (c) creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by— (i) providing for the key rights, obligations and employment arrangements of public sector employees; and (ii) maximising employment security and permanency of employment; and (iii) taking steps to promote equity, diversity, respect and inclusion in employment, including for diversity target groups; and (iv) ensuring a high-performing and diverse workforce, through fair and transparent, merit-based selection processes; and (v) ensuring fair and accountable decision-making, including by providing public sector employees with access to fair and independent reviews and appeals; and (vi) setting a positive performance management framework for public sector employees; and (vii) fixing principles to guide public sector managers, and the work performance and personal conduct of public sector employees; and (d) establishing a high-performing, apolitical public sector by effective stewardship that— (i) responds to the needs of the community and the government; and (ii) maintains accountability, impartiality and integrity, while supporting the public interest, and when giving advice to the government; and (iii) focuses on the delivery of services and government programs; and (iv) supports the government in making and implementing decisions about public policy while harnessing creativity and innovation; and (v) ensures public resources are managed efficiently and their use is accountable. 5 Application of provisions of this Act by another Act (1) Nothing in this Act prevents another Act or regulation from— (a) applying particular provisions of this Act to an entity that is not a public sector entity or to the chief executive or employees of that entity; or (b) providing for the way in which the provisions mentioned in paragraph (a) are to apply, including, for example, that they apply with or without change. (2) In this section— chief executive, of an entity, includes the individual responsible for the day-to-day management of the entity or the entity's affairs, whether or not the individual is subject to the direction of, or reports to, a governing body of the entity. Part 2 Interpretation Division 1 Dictionary 6 Definitions The dictionary in schedule 2 defines particular words used in this Act. Division 2 Key terms Subdivision 1 Entities 7 What is the public sector The public sector is the sector that consists of— (a) public sector entities; and (b) public sector employees who are employed in public sector entities. 8 What is a public sector entity (1) A public sector entity is— (a) a public service entity; or (b) an entity, other than a public service entity, prescribed by regulation as a public sector entity; or (c) a registry or other administrative office of a court or tribunal of the State; or (d) an agency, authority, commission, corporation, instrumentality, office, or other entity, other than an entity mentioned in paragraph (a), (b) or (c), established under an Act for a public or State purpose. (2) However, none of the following is a public sector entity— (a) a local government; (b) a corporation owned by a local government, or a subsidiary of a corporation owned by a local government; (c) the parliamentary service established under the Parliamentary Service Act 1988; (d) the Governor's official residence (known as 'Government House') and its associated administrative unit; (e) the Executive Council; (f) the Legislative Assembly; (g) a court of the State; (h) the police service to the extent that it does not include staff members mentioned in the Police Service Administration Act 1990, section 2.5(1)(a) or 2.5(1)(b)(ii); (i) a community justice group established under the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984; (j) a school council established under the Education (General Provisions) Act 2006; (k) a parents and citizens association formed under the Education (General Provisions) Act 2006, chapter 7; (l) a university established under an Act; (m) a co-operative under the Co-operatives National Law (Queensland) for primary producers that is not in receipt of moneys of, or financial assistance from, the State; (n) an association incorporated under the Associations Incorporation Act 1981; (o) a government owned corporation, unless a regulation prescribes it to be a public sector entity; (p) a national system employer within the meaning of the Fair Work Act 2009 (Cwlth), section 14, including a national system employer mentioned in section 30N of that Act; (q) the council; (r) a taskforce established under section 195; (s) another entity prescribed by another Act for this section not to be a public sector entity; (t) another entity, or part of another entity, prescribed by regulation for this section not to be a public sector entity. (3) Also, if a public sector entity mentioned in subsection (1)(d) is part of a department, the public sector entity is taken not to have an existence as a public sector entity, separate to the existence of the department as a public sector entity, for the purpose of this Act. (4) In this section— court includes a court of record. 9 What is a public service entity A public service entity is— (a) a department; or (b) an entity mentioned in schedule 1. 10 What is a department A department is a department of government declared under section 197. 11 What is the public service The public service consists of persons employed under chapter 4 or 5 in departments or other public service entities. Subdivision 2 Employees 12 Who is a public sector employee (1) A public sector employee is— (a) a public service employee; or (b) a person employed under another Act or law in a public sector entity. (2) However, none of the following is a public sector employee— (a) a person appointed to an office if— (i) the appointment to the office is made by the Governor alone; or (ii) the appointment to the office is made by the Governor in Council; or (iii) the salary for the office is provided for, or calculated in accordance with a salary provided for, under the Judicial Remuneration Act 2007, the District Court of Queensland Act 1967 or the Magistrates Act 1991; or (iv) the office is a particular office established under an Act that expressly provides for the appointment of the holder of an office mentioned in subparagraph (ii); or (v) the office is honorary; or (vi) the office is prescribed by regulation for this subparagraph; (b) a person appointed as a member of a board; (c) a person appointed as a chief executive of a public sector entity if the person was appointed by a board; (d) a person employed as an associate to a Supreme Court judge, District Court judge, commissioner under the Industrial Relations Act 2016, or judge or member of another court of record; (e) a person employed as a ministerial staff member under the Ministerial and Other Office Holder Staff Act 2010; (f) a person employed under a law of a jurisdiction outside Australia; (g) a person prescribed by another Act for this section not to be a public sector employee; (h) a person prescribed by regulation for this section not to be a public sector employee. (3) Despite subsection (1) or (2), a person is a public sector employee if— (a) the person is appointed as a chief executive under section 171, the commissioner under section 212, or a special commissioner under section 230; or (b) another Act provides the person is to be, may be, or is employed or appointed under this Act. (4) Public sector employees are generally employees for the Industrial Relations Act 2016. (5) Subsection (4) does not limit or otherwise affect section 141. 13 Who is a public service employee (1) A public service employee is a person employed under chapter 4 or 5 in a public service entity as— (a) a general employee; or (b) a fixed term temporary employee; or (c) a casual employee; or (d) an officer; or (e) a senior officer; or (f) a senior executive; or (g) a chief executive. (2) Also, the commissioner and each special commissioner are a public service employee. 14 Who is a public service officer A public service officer is a public service employee mentioned in section 13(1)(d), (e), (f) or (g) or (2). 15 Conditions of employment of public sector employee (1) The purpose of this section is to give an overview of a public sector employee's conditions of employment. (2) A public sector employee's conditions of employment are governed by various laws and instruments, including, for example, the following— (a) this Act; (b) the Industrial Relations Act 2016; (c) other Acts applying to the employee; (d) industrial instruments applying to the employee; (e) directives applying to the employee; (f) the employee's contract of employment. (3) A public sector employee's conditions of employment may be affected by other Acts, including, for example, the Human Rights Act 2019. Subdivision 3 Chief executives 16 Who is a chief executive A chief executive, in relation to a public sector entity, is— (a) for a department—the individual appointed under this Act as the chief executive of the department; or (b) for a public service entity mentioned in section 9(b)—the head of the entity; or (c) for another public sector entity— (i) if a regulation prescribes a position for this subparagraph—the individual who holds the prescribed position; or (ii) otherwise—the individual responsible for the day- to-day management of the entity or the entity's affairs, whether or not the individual is subject to the direction of, or reports to, a governing body of the entity. 17 Who is a public sector employee's chief executive (1) The chief executive, of a public sector employee, is— (a) for a public service employee—the chief executive of the public service entity in which the employee is employed as a public service employee; or (b) for a public sector employee mentioned in section 12(1)(b)—the chief executive of the public sector entity in which the employee is employed as a public sector employee. (2) Despite subsection (1)(a), if the employee is employed in a public service entity mentioned in section 9(b), the chief executive of the employee is the head of the entity. (3) To remove any doubt, it is declared that— (a) the chief executive of a health service employee appointed under the Hospital and Health Boards Act 2011, section 67(1) is the chief executive of the department mentioned in that section; and (b) the chief executive of a health executive or a senior health service employee appointed under the Hospital and Health Boards Act 2011, section 67(2) is the chief executive of the Service mentioned in that section; and (c) the chief executive of a health service employee appointed under the Hospital and Health Boards Act 2011, section 67(3) is the chief executive of the prescribed Service mentioned in that section. 18 Relationship between chief executives and their employees (1) The chief executive of a department is, for the State, responsible for the employment of public service employees of that department. (2) The public service employees of a department are responsible to that department's chief executive in relation to their employment in that department. (3) The chief executive of a public sector entity other than a department is, for the State or the public sector entity, responsible for the employment of public sector employees of that public sector entity. (4) The public sector employees of a public sector entity other than a department are responsible to that public sector entity's chief executive in relation to their employment in that public sector entity. Part 3 Reframing of State's relationship with Aboriginal peoples and Torres Strait Islander peoples Division 1 Preliminary 19 Purpose of part (1) The purpose of this part is to— (a) ensure reframing entities support the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples, being Australia's first peoples; and (b) develop the cultural capability of prescribed entities. (2) The purpose is to be achieved by ensuring reframing entities and prescribed entities take active steps to— (a) recognise the importance to Aboriginal peoples and Torres Strait Islander peoples of the right to self-determination; and (b) foster a culturally capable workforce and a culturally safe workplace by developing the cultural capability of the entities. 20 Definitions for part In this part— cultural capability, of an entity, means the integration of knowledge about the experiences and aspirations of Aboriginal peoples and Torres Strait Islander peoples into the entity's workplace standards, policies, practices and attitudes to produce improved outcomes for Aboriginal peoples and Torres Strait Islander peoples. reframing entity means— (a) a public sector entity; or (b) the police service; or (c) an entity prescribed by another Act for this definition; or (d) an entity prescribed by regulation for this definition. Division 2 Responsibilities 21 Responsibilities for supporting a reframed relationship with Aboriginal peoples and Torres Strait Islander peoples (1) Reframing entities, as providers of public services to the people of Queensland, have a unique role in supporting the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples. (2) Reframing entities fulfil the role by— (a) recognising and honouring Aboriginal peoples and Torres Strait Islander peoples as the first peoples of Queensland; and (b) engaging in truth-telling about the shared history of all Australians; and (c) recognising the importance to Aboriginal peoples and Torres Strait Islander peoples of the right to self-determination; and (d) promoting cultural safety and cultural capability at all levels of the public sector; and (e) working in partnership with Aboriginal peoples and Torres Strait Islander peoples to actively promote, include and act in a way that aligns with their perspectives, in particular when making decisions directly affecting them; and (f) ensuring the workforce and leadership of the entities are reflective of the community they serve, having regard to chapter 2 and chapter 3, part 3; and (g) promoting a fair and inclusive public sector that supports a sense of dignity and belonging for Aboriginal peoples and Torres Strait Islander peoples; and (h) supporting the aims, aspirations and employment needs of Aboriginal peoples and Torres Strait Islander peoples and the need for their greater involvement in the public sector. (3) The chief executive of a reframing entity is responsible for ensuring the entity fulfils the role. (4) To remove any doubt, it is declared that— (a) an act or decision is not invalid merely because a person fails to comply with this section; and (b) nothing in this section creates in a person a legal right or gives rise to a civil cause of action. Division 3 Plan and audit 22 Definition for division In this division— prescribed entity means— (a) a department; or (b) a Hospital and Health Service established under the Hospital and Health Boards Act 2011, section 17; or (c) the police service; or (d) an entity prescribed by another Act for this definition; or (e) an entity prescribed by regulation for this definition. 23 Reframing the relationship plan and audit (1) The chief executive of a prescribed entity must, as part of the entity's workforce planning, make a document (a reframing the relationship plan), informed by the matters mentioned in section 21, that identifies the measures for developing the cultural capability of the entity when— (a) providing advice to the State government; and (b) delivering services to the community. (2) The reframing the relationship plan must be published— (a) on the prescribed entity's website; or (b) if the prescribed entity does not have a website, in another publicly available way the chief executive of the entity considers appropriate. (3) As soon as practicable after the end of each financial year, the chief executive of the prescribed entity must conduct an audit of the entity's performance as measured against the reframing the relationship plan. (4) The chief executive of the prescribed entity— (a) must review the reframing the relationship plan annually; and (b) may amend the plan at any time; and (c) is responsible for the implementation and outcomes of the plan. Chapter 2 Equity, diversity, respect and inclusion Part 1 Preliminary 24 Purpose of chapter (1) The purpose of this chapter is to ensure each prescribed entity— (a) develops a diverse workforce that represents and reflects the diverse views, experiences and backgrounds of the people of Queensland; and (b) actively progresses equity and diversity in employment matters for diversity target groups, including conducting an annual equity and diversity audit and actively progressing gender pay equity; and (c) can demonstrate there are equal conditions of employment and equality in access to employment opportunities and leadership roles; and (d) fosters a respectful and inclusive workplace culture in which all employees feel safe, valued, accepted and supported at work and can participate equally; and (e) creates a workplace free from unlawful discrimination. (2) In this section— actively progressing gender pay equity includes taking measures to achieve— (a) equal remuneration for male and female employees for work of equal or comparable value; and (b) equity for women in employment conditions; and (c) equity in women's access to working arrangements and employment and development opportunities. 25 Definitions for chapter In this chapter— chapter 2 special commissioner means a person appointed as a special commissioner under section 230 whose area of public sector administration stated in the person's instrument of appointment relates to promoting equity, diversity, respect and inclusion in employment. chief executive, of a prescribed entity— (a) for a prescribed entity that is a public sector entity—see section 16; or (b) otherwise—the individual responsible for the day-to-day management of the entity or the entity's affairs, whether or not the individual is subject to the direction of, or reports to, a governing body of the entity. culture of respect and inclusion, in relation to a prescribed entity's workforce, see section 32. diversity target group means any of the following groups— (a) Aboriginal peoples and Torres Strait Islander peoples; (b) people from culturally and linguistically diverse backgrounds; (c) people with disability; (d) women; (e) a group prescribed by regulation for this definition. employee includes an individual appointed under a statutory appointment. equity and diversity audit see section 29(1). equity and diversity plan see section 28(1). equity and diversity report see section 29(3). prescribed entity means— (a) a public sector entity; or (b) the police service; or (c) an entity prescribed by another Act for this definition; or (d) an entity prescribed by regulation for this definition. unlawful discrimination means discrimination that is unlawful under the Anti-Discrimination Act 1991. 26 Application of chapter This chapter applies in relation to a prescribed entity only to the extent the prescribed entity has employees. Part 2 Equity and diversity in employment 27 Duty to promote equity and diversity The chief executive of a prescribed entity must take reasonable action to— (a) promote, support and progress equity and diversity in the entity in relation to employment matters; and (b) ensure people who are members of 1 or more diversity target groups are able to pursue careers, and compete for recruitment, selection and promotion opportunities, in the entity; and (c) eliminate unlawful discrimination in the entity in relation to employment matters. 28 Equity and diversity plan (1) The chief executive of a prescribed entity must, as part of the entity's workforce planning, make a document (an equity and diversity plan) that identifies the measures for improving equity and diversity in the entity in relation to employment matters. (2) Without limiting subsection (1), the measures identified in the equity and diversity plan must include— (a) the establishment of objectives, strategies and targets for the employment of people who are members of 1 or more diversity target groups in the prescribed entity; and (b) any other measure prescribed by regulation. (3) The equity and diversity plan must be published— (a) on the prescribed entity's website; or (b) if the prescribed entity does not have a website, in another publicly available way the chief executive of the entity considers appropriate. (4) The chief executive of the prescribed entity— (a) must review the equity and diversity plan annually; and (b) may amend the plan at any time, having regard to the most recent equity and diversity audit and equity and diversity report; and (c) is responsible for the implementation and outcomes of the plan. (5) To remove any doubt, it is declared that the equity and diversity plan may also address matters about a group of employees that is not a diversity target group. Example of a group of employees that is not a diversity target group— people with diverse sexual orientations, gender identities or intersex variations 29 Equity and diversity audit and report (1) The chief executive of a prescribed entity must conduct an audit each year (an equity and diversity audit)— (a) to gather information about the composition of the entity's workforce; and (b) if the entity had an equity and diversity plan for the previous year—to analyse performance against that plan; and (c) otherwise to identify and analyse opportunities to promote, support and progress equity and diversity in the entity. (2) In planning for and conducting the audit, the chief executive of the prescribed entity must consider— (a) the purpose of this chapter under section 24; and (b) the chief executive's duty under section 27; and (c) the obligation under section 28 for the chief executive to make an equity and diversity plan. (3) As soon as practicable after conducting the audit, the chief executive of the prescribed entity must prepare a report about the information gathered in the audit (an equity and diversity report). (4) If the commissioner or chapter 2 special commissioner asks the chief executive of the prescribed entity for a copy of the equity and diversity report, the chief executive must comply with the request. 30 Request for information (1) The commissioner or chapter 2 special commissioner may ask the chief executive of a prescribed entity to provide information about the chief executive's compliance with section 27, 28 or 29. (2) Also, the commissioner or chapter 2 special commissioner may ask for the following information for the prescribed entity— (a) the steps the entity has taken to comply with its equity and diversity plan; (b) the other information prescribed by regulation. (3) The chief executive of the prescribed entity must give the commissioner and chapter 2 special commissioner the information within 3 months after receiving the request. 31 Recommendation to take particular action (1) This section applies if the commissioner or chapter 2 special commissioner believes that the chief executive of a prescribed entity has not fully complied with the obligation under section 28(1) to make an equity and diversity plan. (2) The commissioner or chapter 2 special commissioner may recommend to the chief executive of the prescribed entity that particular action (the recommended action) be taken to improve compliance with the obligation. (3) Without limiting subsection (2), the commissioner or chapter 2 special commissioner may recommend to the chief executive of the prescribed entity that the entity's equity and diversity plan be amended. (4) The chief executive of the prescribed entity must either— (a) take the recommended action; or (b) give the commissioner and chapter 2 special commissioner a notice stating the reasons why the recommended action can not be taken. Part 3 Culture of respect and inclusion in the public sector 32 What is a culture of respect and inclusion A culture of respect and inclusion, in relation to a prescribed entity's workplace, includes a culture where— (a) all employees feel safe in the workplace; and (b) the experiences and perspectives of members of diversity target groups, and other groups of employees that are not diversity target groups, are invited and respected; and Example of a group of employees that is not a diversity target group— people with diverse sexual orientations, gender identities or intersex variations (c) a culture of belonging is fostered in the entity's workforce; and (d) employees in the entity are supported to work together to improve performance and wellbeing of all employees; and (e) employees in the entity possess the skills and knowledge, and have access to the systems, necessary to engage in employment matters in a respectful, appropriate and safe way. 33 Duty to promote and support culture of respect and inclusion (1) The chief executive of a prescribed entity is responsible for promoting and supporting a culture of respect and inclusion in the entity's workplace. (2) The chief executive of a prescribed entity must ensure the entity's training programs, policies and practices specifically promote and support a culture of respect and inclusion. (3) To remove any doubt, it is declared that the prescribed entity's equity and diversity plan may outline measures for fulfilling the requirements under subsection (1) or (2). Example— The prescribed entity's equity and diversity plan may contain measures for promoting a culture in which the experiences and perspectives of people with diverse sexual orientations, gender identities or intersex variations are invited and respected. 34 Request for information (1) The commissioner or chapter 2 special commissioner may ask the chief executive of a prescribed entity to provide information about the entity's compliance with section 33. (2) The chief executive of the prescribed entity must give the commissioner and chapter 2 special commissioner the information within 3 months after receiving the request. 35 Recommendation to take particular action (1) This section applies if the commissioner or chapter 2 special commissioner believes, on the basis of information given under section 34, that the chief executive of a prescribed entity has not fully complied with the obligation under section 33(2). (2) The commissioner or chapter 2 special commissioner may recommend to the chief executive of the prescribed entity that particular action (the recommended action) be taken to improve compliance with the obligation. (3) The chief executive of the prescribed entity must either— (a) take the recommended action; or (b) give the commissioner and chapter 2 special commissioner a notice stating the reasons why the recommended action can not be taken. Part 4 Miscellaneous 36 Annual report (1) This section applies to the following person (the relevant commissioner)— (a) the chapter 2 special commissioner; (b) if there is not a chapter 2 special commissioner—the commissioner. (2) As soon as practicable after the end of each financial year, the relevant commissioner must prepare and give to the chairperson of the council a report about the relevant commissioner's activities under chapter 2 during the financial year. (3) The chairperson must give the Minister and the council a copy of the report. 37 Exemption from particular requirements and obligations (1) This section applies if the commissioner or chapter 2 special commissioner believes it is not reasonably practicable for the chief executive of a prescribed entity to comply with any of the following requirements or obligations because of the number of staff or other resources of the entity— (a) a requirement to make an equity and diversity plan; (b) a requirement to conduct an equity and diversity audit; (c) a requirement to prepare an equity and diversity report; (d) an obligation under section 33(2). (2) The commissioner or chapter 2 special commissioner may give the chief executive of the prescribed entity an exemption from the requirement or obligation. (3) The exemption may be for all years or a particular year. (4) The commissioner or chapter 2 special commissioner may cancel all or part of the exemption. (5) The exemption or cancellation must be in writing. Chapter 3 Public sector arrangements Part 1 Preliminary 38 Application of chapter This chapter applies to public sector entities and public sector employees. Part 2 Principles 39 Public sector principles (1) In recognition that public sector entities are established for a public or State purpose, and of the trust the people of Queensland place in public sector entities, a public sector entity should be guided by the principles mentioned in subsections (2) and (3) (the public sector principles). (2) The management of the public sector should be guided by the following principles— (a) achieving a spirit of service to the community; (b) ensuring accountability, integrity and support of the public interest; (c) ensuring independence, transparency and impartiality in giving advice and making decisions; (d) achieving responsiveness, innovation and creativity; (e) promoting collaboration between public sector entities and other entities in providing services to the community; (f) achieving continuous organisational improvement. (3) The employment of public sector employees should be guided by the following principles— (a) ensuring employment on a permanent basis is the default basis of employment, other than for non-industrial instrument employees; (b) supporting equity, diversity, respect and inclusion at work; (c) ensuring the taking of measures aimed at implementing and promoting pay equity; (d) ensuring effectiveness and efficiency while maintaining a focus on the future; (e) ensuring fairness and impartiality in making decisions; (f) remunerating employees at rates appropriate to their responsibilities; (g) promoting equitable and flexible working environments. 40 Work performance and personal conduct principles (1) In recognition that public sector employment involves a public trust, the work performance and personal conduct of each public sector employee should be guided by the following principles (the work performance and personal conduct principles)— (a) achieving excellence in service delivery; (b) ensuring the effective, efficient and appropriate use of public resources; (c) giving effect to government policies and priorities; (d) collaborating with other public sector entities with a focus on public sector-wide priorities in addition to priorities specific to particular public sector entities, if appropriate and while recognising the need for independence of particular public sector entities; (e) providing sound and impartial advice to government; (f) continuously improving work performance, including through training and development; (g) carrying out duties impartially and with integrity; (h) acting honestly, fairly and in the public interest; (i) interacting with staff members under the Ministerial and Other Office Holder Staff Act 2010 respectfully, collaboratively and with integrity; (j) observing all laws relevant to the employment; (k) ensuring the employee's personal conduct does not reflect adversely on the reputation of the public sector entity in which the employee is employed; (l) observing the ethics principles under the Public Sector Ethics Act 1994, section 4; (m) complying with an approved code of conduct and any approved standard of practice as required under the Public Sector Ethics Act 1994, section 12H or 18. (2) A public sector manager must take all reasonable steps to ensure each public sector employee under the manager's management is aware of the following matters— (a) the work performance and personal conduct expected of the employee; (b) the public sector principles; (c) the values of the public sector entity in which the employee is employed; (d) for a public service employee—the values of the public service; (e) what constitutes corrupt conduct under the Crime and Corruption Act 2001. (3) Also, a public sector manager must— (a) provide working environments in which all public sector employees are— (i) treated fairly and reasonably; and (ii) assigned work according to the employee's responsibilities as reflected in remuneration rates; and (b) consider and give effect to the following matters when undertaking management responsibilities— (i) the public sector principles; (ii) the values of the public sector entity in which the employee is employed; (iii) if the manager is a public service employee—the values of the public service; and (c) ensure fairness and integrity in performing managerial functions, including when making decisions; and (d) undertake best practice human resource management, including the application of the positive performance management principles in the following ways— (i) pro-actively managing the work performance and personal conduct of public sector employees; (ii) constructively engaging with public sector employees to identify development and training opportunities, improve work performance, and build expertise in the public sector; (iii) taking prompt and appropriate action to address any unacceptable work performance or personal conduct that arises; and (e) take personal responsibility for development as a manager. (4) A chief executive of a public sector entity has overall responsibility for— (a) ensuring the entity performs its functions in a way consistent with— (i) the main purpose of the Act; and (ii) the ways in which the main purpose of the Act is to be primarily achieved; and (iii) the public sector principles; and (b) ensuring managers within the entity perform managerial functions in accordance with the positive performance management principles; and (c) ensuring public sector employees have access to fair and independent reviews and appeals; and (d) ensuring the entity has workforce and human resource planning and practices, including systems for the regular review of employment arrangements for public sector employees. Note— If the chief executive is an accountable officer under the Financial Accountability Act 2009, see also the responsibility of the chief executive to develop the strategic plan and operational plan under the Financial and Performance Management Standard 2019, section 8. 41 How chief executive must perform functions and discharge responsibilities In performing functions and discharging responsibilities under an Act, a chief executive of a public sector entity must— (a) observe the public sector principles; and (b) comply with all relevant laws, industrial instruments and directives. Part 3 Recruitment and selection 42 Definition for part In this part— employ, a person as a public sector employee, includes— (a) for a public service officer—second or promote the officer; and (b) for a chief executive—appoint. 43 Application of part This part applies to the employment of an eligible person in or to a public sector entity. 44 Principles underpinning recruitment and selection (1) The purpose of this section is to ensure the recruitment and selection of a high-performing, apolitical and representative public sector workforce. (2) A person undertaking a recruitment and selection process in a public sector entity, including, for example, making a decision about employment of a public sector employee, must undertake the process in accordance with the principles mentioned in subsection (3). (3) The principles are— (a) recruitment and selection processes must be directed to the selection of the eligible person best suited to the position; and (b) recruitment and selection processes must be fair and transparent; and (c) recruitment and selection processes must reflect the obligations under chapter 2 relating to equity, diversity, respect and inclusion. 45 Employment on merit and for equity and diversity (1) A person selected for employment in or to a public sector entity must be the eligible applicant best suited to the position. (2) In deciding the eligible applicant best suited to a position, a person undertaking a recruitment and selection process in a public sector entity— (a) must consider each eligible applicant's ability to perform the requirements of the position; and (b) may consider— (i) the way in which each eligible applicant carried out any previous employment; and (ii) the potential of each eligible applicant to make a future contribution to the entity; and (iii) the extent to which the proposed decision would contribute to fulfilment of the entity's obligations under chapter 2, including, for example, the objectives, strategies and targets stated in the entity's equity and diversity plan. 46 Directive about recruitment and selection The commissioner may make a directive about recruitment and selection under this part, including, for example— (a) the way in which recruitment or selection processes in public sector entities must be carried out; and (b) the way in which the principles mentioned in section 44(3) are to be applied; and (c) a matter mentioned in section 45(2). Part 4 Eligibility for employment 47 Requirement for citizenship or residency (1) A person is eligible to be a public sector employee only if the person— (a) is an Australian citizen; or (b) resides in Australia and has permission, under a law of the Commonwealth, to work in Australia. (2) A public sector employee's chief executive may, by signed notice, terminate the employee's employment if the employee is ineligible under subsection (1) to be a public sector employee. (3) If a public sector employee's permission to work in Australia ends, the employee's employment is taken to have been terminated by the employee's chief executive on the same day. Part 5 Suitability for employment Division 1 Preliminary 48 Definitions for part In this part— engage, a person as a public sector employee, includes— (a) employ, promote, transfer, redeploy or second the person within or to a public sector entity; and (b) allow the person to participate in a mobility arrangement in a public sector entity; and (c) start training the person in a public sector entity as an apprentice or trainee, within the meaning of the Further Education and Training Act 2014. suitability directive means a directive made for this part. Division 2 Criminal history 49 Definition for division In this division— relevant duty see section 50. 50 Meaning of relevant duty (1) A particular duty to be performed in a public sector entity is a relevant duty if the chief executive of the entity decides under the suitability directive that because of the nature of the duty, it may be necessary to have regard to the criminal history of a person engaged to perform the duty to ensure the person is suitable to perform the duty. (2) However, the duty is not a relevant duty if the duty is likely to involve— (a) child-related duties; or (b) regulated employment. Notes— 1 See divisions 3 and 4 for assessing the suitability of persons to be engaged in child-related duties. 2 See the Working with Children (Risk Management and Screening) Act 2000, chapter 7, and division 4, in relation to persons to be engaged in duties that are regulated employment. 51 Relationship with other laws This division is subject to the Criminal Law (Rehabilitation of Offenders) Act 1986 but does not limit any other law, or other provision of this Act, under which a person's criminal history may be obtained. 52 Chief executive may decide to obtain criminal history (1) This section applies if the chief executive of a public sector entity engages, or proposes to engage, a person to perform a relevant duty in the entity. (2) Also, this section applies if the chief executive of a public sector entity changes, or proposes to change, the duties of a public sector employee employed in the entity to include a relevant duty. (3) The chief executive may, under the suitability directive, ask the person for written consent for the chief executive to obtain the person's criminal history. 53 Failure to consent to obtaining criminal history (1) This section applies if the person does not consent, or withdraws the person's consent, to the chief executive obtaining the person's criminal history. (2) If the person is a public sector employee in the public sector entity who is engaged in performing a relevant duty, the chief executive must ensure the person does not perform a relevant duty. (3) If the person is not a public sector employee in the public sector entity who is engaged in performing a relevant duty, the chief executive is not required to consider the person for the engagement. 54 Obtaining criminal history with consent (1) This section applies if the person gives written consent to the chief executive obtaining the person's criminal history. (2) The chief executive may ask the police commissioner for a written report about the person's criminal history. (3) The request may include the following— (a) the person's name and any other name the chief executive believes the person may use or may have used; (b) the person's date and place of birth, gender and address. (4) The police commissioner must comply with the request to the extent the police commissioner has possession of or access to the person's criminal history. 55 Assessment of suitability using criminal history After the report about the person's criminal history is given to the chief executive, the chief executive must, under the suitability directive, consider the person's criminal history in making an assessment about— (a) for section 52(1)—the person's suitability for the engagement to perform the relevant duty; or (b) for section 52(2)—the person's suitability for the change to the person's duties to include the relevant duty. Division 3 Child-related duties 56 Definitions for division In this division— child-related duty see section 57. negative notice means a negative notice under the Working with Children (Risk Management and Screening) Act 2000. registered teacher see the Working with Children (Risk Management and Screening) Act 2000, schedule 7. 57 Meaning of child-related duty (1) A duty to be performed in a public sector entity is a child-related duty if the chief executive of the entity decides under the suitability directive that— (a) the duty— (i) is to be performed at a place at which services are provided only or mainly to children; or (ii) is to be performed in a role involving providing services only or mainly to children; or (iii) involves contact with children that is of a type, or happens in a context, that may create an unacceptable level of risk for children; and (b) it is necessary to conduct child-related employment screening, under the Working with Children (Risk Management and Screening) Act 2000, chapter 8, of a person the chief executive engages, proposes to engage, or has engaged, to perform the duty, to ensure the person is suitable to perform the duty. (2) However, the duty is not a child-related duty if the duty is likely to involve regulated employment. Note— See the Working with Children (Risk Management and Screening) Act 2000, chapter 7, and division 4, in relation to persons to be engaged in duties that are regulated employment. 58 Chief executive must ensure person holds working with children authority (1) The chief executive of a public sector entity must ensure a person does not perform a child-related duty in the entity unless— (a) the person holds a working with children authority; or (b) if the person is a police officer or registered teacher—the person has made a working with children check (exemption) application under the Working with Children (Risk Management and Screening) Act 2000. (2) Subsection (1) applies even if the person is a public sector employee at the time the chief executive proposes to engage the person to perform the child-related duty. 59 Chief executive must ensure police officer or registered teacher who is also a public sector employee holds exemption (1) This section applies if— (a) the chief executive of a public sector entity engages a person who is a police officer or registered teacher to perform child-related duties on the basis the person made an application mentioned in section 58(1)(b); and (b) when the chief executive engages the person, the person is also a public sector employee; and (c) either of the following happens— (i) the person's application is withdrawn under the Working with Children (Risk Management and Screening) Act 2000; (ii) the person is issued a negative notice. (2) The chief executive must ensure the person does not continue to perform child-related duties. 60 Chief executive must ensure police officer or registered teacher who is not public sector employee holds exemption (1) This section applies if— (a) the chief executive of a public sector entity engages a person who is a police officer or registered teacher to perform child-related duties on the basis the person has made an application mentioned in section 58(1)(b); and (b) when the chief executive engages the person, the person is not a public sector employee. (2) The chief executive— (a) may employ the person on probation only for a period that does not end before a working with children exemption is issued to the person; and (b) may confirm the person's employment after probation only if the person is issued a working with children exemption; and (c) must not confirm the person's employment after probation if either of the following happens— (i) the person's application is withdrawn under the Working with Children (Risk Management and Screening) Act 2000; (ii) the person is issued a negative notice. (3) Subsection (2) does not limit or otherwise affect a power to impose a longer probationary period or to terminate a person's employment. (4) In this section— working with children exemption see the Working with Children (Risk Management and Screening) Act 2000, section 282(2). 61 Effect of suspension of working with children authority (1) This section applies if a person's working with children authority is suspended under the Working with Children (Risk Management and Screening) Act 2000. (2) The chief executive must ensure the person does not perform a child-related duty in the public sector entity during the period of the suspension. 62 Effect of cancellation of working with children authority (1) This section applies if a person's working with children authority is cancelled under the Working with Children (Risk Management and Screening) Act 2000. (2) The chief executive must ensure the person does not perform a child-related duty in the public sector entity. Division 4 Further assessment of persons issued with working with children authority 63 Definition for division In this division— prescribed duty means— (a) a child-related duty; or (b) a duty relating to regulated employment. 64 Application of division (1) This division applies if— (a) the chief executive of a public sector entity engages, proposes to engage, or has engaged, a person to perform a prescribed duty in the entity; and (b) the chief executive (working with children) has issued a working with children authority to the person; and (c) the chief executive (working with children) has advised the chief executive of the public sector entity, under the Working with Children (Risk Management and Screening) Act 2000, section 235 or 293, that a further assessment of the person may be needed to decide whether the person should be engaged to perform the prescribed duty. (2) However, this section does not apply if the chief executive of the public sector entity engages, proposes to engage, or has engaged, the person to perform the prescribed duty only— (a) under a contract for services; or (b) on a voluntary basis; or (c) if the person is a student—under an arrangement to provide the person with practical experience in the person's field of study. (3) In this section— chief executive (working with children) means the chief executive of the department in which the Working with Children (Risk Management and Screening) Act 2000 is administered. 65 Relationship with other laws This division is subject to the Criminal Law (Rehabilitation of Offenders) Act 1986 but does not limit any other law, or other provision of this Act, under which a person's criminal history may be obtained. 66 Chief executive may decide to obtain criminal history The chief executive may, under the suitability directive, ask the person for written consent for the chief executive to obtain the person's criminal history. 67 Failure to consent to obtaining criminal history (1) This section applies if the person does not consent, or withdraws the person's consent, to the chief executive obtaining the person's criminal history. (2) If the person is a public sector employee in the public sector entity who is engaged in performing a prescribed duty, the chief executive must ensure the person does not perform a prescribed duty. (3) If the person is not a public sector employee in the public sector entity who is engaged in performing a prescribed duty, the chief executive is not required to consider the person for the engagement. 68 Obtaining criminal history with consent (1) This section applies if the person gives written consent to the chief executive obtaining the person's criminal history. (2) The chief executive may ask the police commissioner for a written report about the person's criminal history. (3) The request may include the following— (a) the person's name and any other name the chief executive believes the person may use or may have used; (b) the person's date and place of birth, gender and address. (4) The police commissioner must comply with the request to the extent the police commissioner has possession of or access to the person's criminal history. 69 Assessment of suitability using criminal history After the report about the person's criminal history is given to the chief executive, the chief executive must, under the suitability directive, consider the person's criminal history in making an assessment about the person's suitability for the engagement to perform the prescribed duty. Division 5 Serious disciplinary action 70 Definition for division In this division— serious disciplinary action means— (a) disciplinary action under a public sector disciplinary law involving— (i) termination of employment; or (ii) reduction of classification level or rank; or (iii) transfer or redeployment to other employment; or (iv) reduction of remuneration level; or (b) a disciplinary declaration under a public sector disciplinary law that states that the disciplinary action that would have been taken against a person if the person's employment had not ended is the disciplinary action mentioned in paragraph (a)(i) or (ii); or (c) action taken by a chief executive to end a person's employment as a public sector employee, or to consider a person's employment as a public sector employee as ended, as mentioned in part 11. 71 Chief executive may require person to disclose serious disciplinary action (1) This section applies if the chief executive of a public sector entity proposes to employ a person in, or second a person to, the entity. (2) The chief executive may, under a directive, require the person to give the chief executive a notice stating the particulars of any serious disciplinary action taken against the person. (3) The person must comply with the requirement before the employment or secondment takes effect and within the period and in the way stated by the chief executive. (4) The chief executive is not required to further consider the person for the employment or secondment if the person— (a) fails to comply with the requirement; or (b) gives false or misleading information in response to the requirement. 72 Assessment of suitability using notice of serious disciplinary action After the notice about the person's serious disciplinary action is given to the chief executive, the chief executive must consider, under a directive, the particulars of any serious disciplinary action taken against the person in making an assessment about the person's suitability for the employment in, or secondment to, the public sector entity. Division 6 Change in criminal history 73 Public sector employee must disclose to chief executive charge or conviction for indictable offence (1) This section applies if a public sector employee is— (a) charged with an indictable offence; or (b) convicted by a court of an indictable offence. (2) The employee must give the employee's chief executive a notice stating— (a) if the employee has been charged with an indictable offence— (i) that the employee has been charged; and (ii) the details of the alleged offence; or (b) if the employee has been convicted of an indictable offence— (i) that the employee has been convicted; and (ii) the details of the offence; and (iii) the penalty imposed on the employee. (3) The notice must be given— (a) if the employee has been charged with an indictable offence—immediately after the employee is charged; or (b) if the employee has been convicted of an indictable offence—immediately after the employee is convicted. (4) In this section— convicted includes a finding of guilt, whether or not a conviction is recorded. indictable offence includes an indictable offence dealt with summarily. 74 Prosecuting authority must disclose to chief executive committals, convictions and other information (1) This section applies if the police commissioner or the director of public prosecutions (a prosecuting authority) becomes aware that a person— (a) is a public sector employee in a public sector entity; and (b) has been charged with a relevant offence. (2) If the person is committed by a court for trial for a relevant offence, the prosecuting authority must, within 7 days after the committal, give the person's chief executive a notice including the following information— (a) the person's name; (b) the court; (c) particulars of the alleged relevant offence; (d) the date of the committal; (e) the court to which the person was committed. (3) If the person is convicted before a court of a relevant offence, the prosecuting authority must, within 7 days after the conviction, give a notice to the person's chief executive including the following information— (a) the person's name; (b) the court; (c) particulars of the relevant offence; (d) the date of the conviction; (e) the sentence imposed by the court. (4) If the person is convicted as mentioned in subsection (3), and the person has appealed against the conviction, and the appeal is finally decided or has otherwise ended, the prosecuting authority must, within 7 days after the decision or the day the appeal otherwise ends, give a notice to the person's chief executive including the following information— (a) the person's name; (b) particulars of the relevant offence; (c) the date of the decision or other ending of the appeal; (d) if the appeal was decided— (i) the court in which it was decided; and (ii) particulars of the decision. (5) If the prosecution for the relevant offence ends without the person being convicted of the offence, the prosecuting authority must, within 7 days after the prosecution process ends, give a notice to the person's chief executive including the following information— (a) the person's name; (b) if relevant, the court in which the prosecution process ended; (c) particulars of the relevant offence; (d) the date the prosecution process ended. (6) For subsection (5), the prosecution process ends if— (a) an indictment was presented against the person but a nolle prosequi is entered on the indictment or the person is acquitted; or (b) the prosecution process otherwise ends. (7) In this section— disqualifying offence see the Working with Children (Risk Management and Screening) Act 2000, section 16. relevant offence means— (a) an indictable offence; or (b) a disqualifying offence that is not an indictable offence. Division 7 Offences 75 Failure to give required notice A person must not fail to give a notice required to be given under section 73 to the person's chief executive, unless the person has a reasonable excuse. Maximum penalty—100 penalty units. 76 Giving chief executive false or misleading information in notice (1) A person must not, in a notice required to be given under section 73 to the person's chief executive, give the chief executive information the person knows is false or misleading in a material particular. Maximum penalty—100 penalty units. (2) Subsection (1) does not apply to a person if the person, when giving the notice— (a) tells the chief executive, to the best of the person's ability, how the notice is false or misleadin