Public Service Amendment Act 2013 (2 of 2013)

Schedule 1   Amendment of the Public Service Act 1999

Part 4   The Australian Public Service Commissioner

Public Service Act 1999

16   Section 41

Repeal the section, substitute:

41 Commissioner's functions

(1) The Commissioner has the following functions:

(a) to strengthen the professionalism of the APS and facilitate continuous improvement in workforce management in the APS;

(b) to uphold high standards of integrity and conduct in the APS;

(c) to monitor, review and report on APS capabilities within and between Agencies to promote high standards of accountability, effectiveness and performance.

(2) Without limiting subsection (1), the Commissioner's functions include the following:

(a) to foster, and contribute to, leadership, high quality learning and development and career management in the APS;

(b) to lead the thinking about, provide advice on and drive reforms to workforce management policies so that the APS is ready for future demands;

(c) to develop, review and evaluate APS workforce management policies and practices and maintain appropriate databases;

(d) to foster an APS workforce that reflects the diversity of the Australian population;

(e) to promote the APS Values, the APS Employment Principles and the Code of Conduct;

(f) to evaluate the extent to which Agencies incorporate and uphold the APS Values and the APS Employment Principles;

(g) to partner with Secretaries in the stewardship of the APS;

(h) to provide advice and assistance to Agencies on public service matters;

(i) to work with other governments (including foreign governments) on matters relating to public sector workforce management, leadership and career management;

(j) to review any matter relating to the APS;

(k) to review any matter relating to the APS referred to the Commissioner by the Public Service Minister, and report on that matter to the Public Service Minister;

(l) to evaluate the adequacy of systems and procedures in Agencies for ensuring compliance with the Code of Conduct;

(m) to inquire, in accordance with section 41A, into alleged breaches of the Code of Conduct by Agency Heads;

(n) to inquire into and determine, in accordance with section 41B, whether an APS employee, or a former APS employee, has breached the Code of Conduct;

(o) to inquire, subject to regulations made for the purposes of section 16, into whistleblower reports made to the Commissioner (or a person authorised by the Commissioner) as referred to in that section;

(p) such other functions as are conferred on the Commissioner by this Act, the regulations or any other law;

(q) such other functions as the Prime Minister, by legislative instrument, directs the Commissioner to perform;

(r) to do anything incidental to or conducive to the performance of any of the Commissioner's functions.

Note: Neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to a direction given under paragraph (2)(q) (see sections 44 and 54 of that Act).

Reports may include recommendations

(3) A report made by the Commissioner in the performance of his or her functions may include recommendations.

Fees

(4) The regulations may authorise the Commissioner to charge fees (on behalf of the Commonwealth) for the performance, on request, of the Commissioner's functions.

41A Inquiry into alleged breach of Code of Conduct by Agency Head

(1) The Commissioner may, for the purposes of paragraph 41(2)(m), inquire into an alleged breach of the Code of Conduct by an Agency Head.

(2) The Commissioner must report on the results of an inquiry under subsection (1) (including, if relevant, recommendations for sanctions) to:

(a) if the Agency Head is a Secretary - the Prime Minister; or

(b) if the Agency Head is the Head of an Executive Agency - the Agency Minister; or

(c) if the Agency Head is the Head of a Statutory Agency that is prescribed by the regulations for the purposes of this paragraph - the Presiding Officers; or

(d) if the Agency Head is the Head of a Statutory Agency that is not prescribed by the regulations for the purposes of paragraph (c) - the Agency Minister.

(3) The regulations may prescribe circumstances in which the Commissioner:

(a) may decline to conduct an inquiry under subsection (1); or

(b) may discontinue such an inquiry without making a report under subsection (2).

41B Inquiry into alleged breach of Code of Conduct by APS employee or former APS employee

Request for inquiry

(1) The Commissioner may, for the purposes of paragraph 41(2)(n), inquire into and determine whether an APS employee, or a former APS employee, in an Agency has breached the Code of Conduct if:

(a) the Agency Head or the Prime Minister requests the Commissioner to do so; and

(b) the Commissioner considers it would be appropriate to do so.

(2) The Prime Minister may make a request under paragraph (1)(a) in relation to an alleged breach of the Code of Conduct of which the Prime Minister has become aware as a result of, or in the course of, a systems review or a special review.

Procedures for inquiry

(3) The Commissioner must establish written procedures for inquiring into and determining whether an APS employee, or a former APS employee, in an Agency has breached the Code of Conduct (including by engaging in conduct referred to in subsection 15(2A)). The procedures:

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

(b) must have due regard to procedural fairness.

(4) In addition, and without affecting subsection (3), the procedures may be different for:

(a) different categories of APS employees or former APS employees; or

(b) APS employees, or former APS employees, who:

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

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

(5) The Commissioner must ensure that the procedures established under subsection (3) are made publicly available.

(6) Procedures established under subsection (3) are not legislative instruments.

Commissioner's powers

(7) For the purposes of inquiring into and determining whether an APS employee, or a former APS employee, in an Agency has breached the Code of Conduct, the Commissioner may exercise the same powers as the Agency Head may exercise in determining whether an APS employee, or a former APS employee, in the Agency has breached the Code of Conduct.

Report on results of inquiry

(8) The Commissioner must report on the results of an inquiry and determination under this section (including an inquiry that is discontinued) in relation to an APS employee, or a former APS employee, in an Agency to:

(a) the Agency Head; and

(b) if the Prime Minister requested the inquiry - the Prime Minister.

Recommendation of sanctions

(9) If:

(a) the Commissioner finds that an APS employee in an Agency has breached the Code of Conduct; and

(b) the Commissioner is requested to recommend sanctions in respect of the breach by:

(i) the Agency Head; or

(ii) if the Prime Minister requested the inquiry - the Prime Minister;

the Commissioner may recommend any of the sanctions referred to in subsection 15(1).

Note: A sanction referred to in subsection 15(1) would be imposed on the APS employee by the Agency Head, not by the Commissioner.

Discontinuation of inquiry

(10) The regulations may prescribe circumstances in which the Commissioner may discontinue an inquiry under this section.

41C Systems reviews

(1) The Prime Minister may direct the Commissioner to conduct a review (a systems review ) of any matter relating to an Agency, including:

(a) the management and organisational systems, structures or processes in an Agency; and

(b) the functional relationships between 2 or more Agencies.

(2) An Agency Minister may request the Prime Minister to make a direction under subsection (1) that relates to an Agency.

(3) The Secretary of a Department may request the Prime Minister to make a direction under subsection (1) that relates to the Department or any other Agency in the same portfolio as the Department.

(4) The Commissioner must give a report on the review to:

(a) the Prime Minister; and

(b) if the review was conducted because of a request by an Agency Minister or a Secretary - the Agency Minister or the Secretary.

(5) If a direction under subsection (1) is given in writing, the direction is not a legislative instrument.

41D Special reviews

(1) The Prime Minister may direct the Commissioner to conduct a review (a special review ) of:

(a) any matter relating to an Agency; or

(b) the functional relationships between 2 or more Agencies.

(2) The Commissioner must give a report on the review to:

(a) the Prime Minister; and

(b) the Agency Minister of each Agency to which the review relates.

(3) If a direction under subsection (1) is given in writing, the direction is not a legislative instrument.