	Public Service Commissioner Annual Report 2003-04 incorporating the annual report 2003-04 of the merit protection commissioner	3

	Merit Protection Commissioner's review This Annual Report focuses primarily on the review system established under section 33 of the Public Service Act 1999 (PS Act) and the Public Service Regulations which provides review rights for Australian Public Service (APS) employees who are not members of the Senior Executive Service (SES) in relation to actions taken in relation to their employment by the Agency Head or another APS employee. My role as Merit Protection Commissioner includes the administration of the framework for review. This framework provides one avenue for supporting the Value that ‘the APS provides a fair system of review of decisions taken in respect of APS employees’ (section 10(1)(o) of the PS Act). It also makes specific provision through PromotionReview Committees (PRCs) for support of the Value that ‘the APS is a public service in which employment decisions are based on merit’ (section 10(1)(b) of the PS Act). My powers as Merit Protection Commissioner are generally recommendatory only. However, in the case of a review of a promotion, the decision of a PRC is binding on an Agency Head. Where a recommendation is made to an Agency Head, they are required to advise me and the relevant employee of their decision on the recommendation and the reasons for the decision. I may, after consulting with the Public Service Minister, report to an Agency Minister, the Prime Minister and the Parliament if I am not satisfied with a response to a recommendation. Agency Heads accepted all but three recommendations arising from reviews during 2003—04. The recommendations not accepted dealt with reviews of action in Centrelink, the Australian Taxation Office and the Department of Employment and Workplace Relations. In all three cases, the issues involved were worked through with the relevant agencies and resolved to my satisfaction. The Annual Report for 2002—03 noted that there was one case in the Australian Taxation Office where the Agency Head had determined not to accept the recommendation made. The report noted that the matters raised in that case were under consideration. Those matters have now also been resolved, with the agency accepting the recommendation. This financial year the following number of applications for review by a Promotion Review Committee and other reviews of action were received: Promotion reviews–requests for the establishment of 101 Promotion Review Committees were received (requests for 193 were received in 2002—03). Seventy-three promotion review cases were reviewed (131 cases were reviewed in 2002—03). Applications concerning breaches of the Code of Conduct–58 applications were received (43 were received in 2002—03). Forty-six applications were reviewed (29 were reviewed in 2002—03). Applications for review other than promotion reviews and those related to the Code of Conduct–167 other applications were received (128 were received in 2002—03). One hundred and four applications were reviewed (54 were reviewed in 2002—03). The number of applications for review by a PRC was lower this financial year than in the previous year while the figures relating to applications concerning other reviews of action indicate that the number of Code of Conduct and other reviews has increased in comparison with the previous financial year. The reduction in the number of applications for review of promotions corresponds with a similar reduction in the number of promotions in those employment categories where existing employees have the capacity to seek a review of the decision. The increase in the number of applications concerning Code of Conduct reviews of 35% is at odds with a trend established over the last few years, which has seen the number of reviews remain static. The increase in the number of applications for other reviews of 30% is a reversal of the downward trend observed last financial year. The increase can largely be attributed to the high number of applications for review submitted by employees of the Australian Taxation Office in relation to a bulk selection exercise undertaken by that agency. I reported last year that the then current target time frames for the different forms of reviews had been established 15 years earlier and, as they had not been reviewed to comprehend changes in the legislative framework, I had established new time frames for the completion of primary and secondary reviews. Performance information for 2003-04 shows that the bulk of reviews–apart from promotion reviews–were not completed within the expected timeframes. I will continue to monitor performance and work to ensure that reviews are completed as quickly as possible consistent with the appropriate consideration of the circumstances of each case. I will also continue to monitor review processes and workload factors and to take those into account in considering the appropriateness of timeliness targets. There is further information on the nature of the reviews and discussion of trends under Analysis of Performance. The information in that section is structured slightly differently this year than in previous Annual Reports. It is presented in a more streamlined format, and repetition has been reduced, in order to make the information more readable and accessible. It is interesting to note from the State of the Service Report 2002—03 that, during that financial year, agencies commenced 926 formal investigations into suspected breaches of the Code of Conduct. Applications for review resulted from less than 10% of those cases that were finalised during the financial year and resulted in a sanction. As this was the first year that information had been collected from agencies on the number of investigations undertaken, it is not possible to say how the numbers vary from previous years. The continued collection of this information will enable future comparisons to be drawn about the number of determinations that result in applications for review. Last year’s State of the Service Report also provided some commentary about the consistency of sanctions, noting that the agency survey had indicated that there is wide variation among agencies in the number of investigations into suspected breaches of the Code of Conduct, the nature of the breaches investigated as well as the imposition of sanctions. The Review and Evaluation Group within the APS Commission is building on the information collected for the State of the Service Report through an evaluation of management of breaches of the Code of Conduct in APS agencies, which will consider the issue of consistency of sanctions. APS Commission employees who assist me in the performance of my functions are also contributing to the evaluation. While it will be useful to see how different agencies are dealing with Code of Conduct matters it must be recognised that, as cases of alleged breaches and the imposition of sanctions must be decided on the circumstances of the case, it is inevitable that there will be different outcomes from different cases, both within and between agencies. What is important is that the process that is followed is fair, appropriate and rigorous and that, within agencies, mechanisms are in place to ensure consistency of decision making. Consideration will need to be given to any broad issues that emerge from the findings of the abovementioned evaluation, such as the application of procedural fairness, that have implications for the APS as a whole. I note that the review applications that I am receiving have not indicated that there are any systemic issues across the APS that need to be addressed. This report continues the use of case studies on a number of reviews conducted during the year. They are based on cases from a number of regions and illustrate the range of issues dealt with, and the approaches taken in addressing those issues. The APS Commission is undertaking a Foundations project which involves a review of the formal arrangements governing organisational management within the APS. I have noted views expressed by agencies represented on the Reference Group for this review that some agencies experience difficulties in determining issues such as whether actions are reviewable and how particular cases should be handled. Agencies indicated that they would welcome more information on these and other issues, such as my role and approach to reviews. The inclusion in this report of case studies is one avenue for providing some guidance on these issues. I am also looking at including case studies on the APS Commission website. This year I attended, along with the acting Group Manager of Regional Services (North East) and the Regional Director of the Queensland Office, the 10th National Public Sector Appeals Conference, which was held in Brisbane from3 to 5 September 2003. The conference provides an annual forum for senior representatives who are engaged in the review of employment decisions in Commonwealth,State or Territory public sector employment to share their experiences, ideas and views. I also attended the Eastern Regional Organization forPublic Administration (EROPA) 19th General Assembly and Conference and 49th Executive Council in New Delhi from 5 to 10 October 2003, where I presented a paper on ethical governance. I continued to promote my role and functions through attendance at a number of other conferences, seminars and forums during the year where I spoke about a range of issues relating to the APS Values and the APS Code of Conduct. I held the annual meeting with all Regional Group Managers, Regional Directors and Regional Advisers in June 2004 in Sydney. The aim of this year’s meeting was to discuss both legislation and policy related issues. The meeting included a presentation from the CommonwealthOmbudsman, Professor John McMillan, and a discussion with a senior lawyer from the Office of the Australian Government Solicitor (AGS). Outcomes of the meeting included agreement on a number of policy related issues and, as a result of the discussion with AGS, progress towards settlement of a number of threshold issues relating to the review function. A number of activities that I had planned for this financial year to further promote my role and the services provided, including the production of new, simplified pamphlets on the review process and changes to the website, have been delayed pending the settlement of these threshold issues. Progressing these awareness-raising activities will be a priority in 2004—05. Last year’s report indicated that I had co-ordinated the development of a national database of all review of action cases. The database, which provides for the collection of data in relation to most of my functions, has been operational for the financial year. This has assisted with the collection of statistics on a national level. More ready availability of statistical data has facilitated better analysis and use of the data. Refinement of the database is continuing to enable it to more fully meet my needs and the needs of the employees who assist me in the performance of my functions. This financial year has also seen the development of an on-line system for notification to agencies of applications for review by a PRC. This system became operational in April 2004 and is now being accessed by most agencies. Facilities that will enable electronic lodgement of applications for review by a PRC are currently being investigated and are expected to be operational early in 2004—05. In addition to the above, my other statutory functions include the establishment of Independent Selection Advisory Committees (ISACs) and a range of employment-related functions undertaken for non-APS persons or bodies, for which I may charge a fee. The use of ISACs continues to offer agencies a number of benefits, including a cost-effective way of conducting selection exercises. While the number of agencies that use ISACs has continued to increase, the number of committees established decreased this financial year in comparison with the previous financial year (53 completed in 2003—04 compared with 93 in 2002—03). However, the high number last financial year was primarily due to an unusually large number of exercises undertaken by the Australian Taxation Office. In 2003—04, 3338 applications were considered by ISACs in recommending 648 applicants for placement. The Australian Taxation Office was still the highest ISAC user this financial year, establishing 16 committees. The majority of the fee-for-service work undertaken on my behalf for non-APS bodies continued to be Joint Selection Committees (JSCs) established under a Memorandum of Understanding with the Australian Federal Police (AFP). The number of AFP JSCs decreased from 276 in 2002—03 to 166 in 2003—04. Additionally, training for AFP employees on selection processes was provided to ensure that there was a trained pool of staff available for future selection committees. JSCs were also undertaken for some ACT Government agencies. Outlook for 2004—05 The anticipated settlement of some threshold issues, referred to above, relating to my role and the review function, will enable priority to be given in 2004—05 to further efforts in relation to the education of both individuals and agencies about review rights. This will involve my continued engagement in activities such as speeches and presentations as well as the review and update, where required, of information available about the review function. These activities will also assist Agency Heads in their obligation to promote and uphold the APS Values and to meet the requirements of the Code of Conduct. I will also continue to promote the range of other services available to assist in merit-based selections, including ISACs. This page is available from www.apsc.gov.au/annualreports/0304/mpcreview.htm For information and help with this site go to Using our site	Transmittal letter Role, functions, structure Home Index Glossary Download the PDF In this part Transmittal letter Commissioner's review Role, functions & structure Management accountability Review of performance Analysis of performance Withdraw application for review Facilitated agreement Breach of Code Term transfer Breach of Code Review not justified Allowance payment
Transmittal letter Role, functions, structure Home Index Glossary Download the PDF

Merit Protection Commissioner's review

This Annual Report focuses primarily on the review system established under section 33 of the Public Service Act 1999 (PS Act) and the Public Service Regulations which provides review rights for Australian Public Service (APS) employees who are not members of the Senior Executive Service (SES) in relation to actions taken in relation to their employment by the Agency Head or another APS employee. My role as Merit Protection Commissioner includes the administration of the framework for review. This framework provides one avenue for supporting the Value that ‘the APS provides a fair system of review of decisions taken in respect of APS employees’ (section 10(1)(o) of the PS Act). It also makes specific provision through PromotionReview Committees (PRCs) for support of the Value that ‘the APS is a public service in which employment decisions are based on merit’ (section 10(1)(b) of the PS Act).

My powers as Merit Protection Commissioner are generally recommendatory only. However, in the case of a review of a promotion, the decision of a PRC is binding on an Agency Head. Where a recommendation is made to an Agency Head, they are required to advise me and the relevant employee of their decision on the recommendation and the reasons for the decision. I may, after consulting with the Public Service Minister, report to an Agency Minister, the Prime Minister and the Parliament if I am not satisfied with a response to a recommendation.

Agency Heads accepted all but three recommendations arising from reviews during 2003—04. The recommendations not accepted dealt with reviews of action in Centrelink, the Australian Taxation Office and the Department of Employment and Workplace Relations. In all three cases, the issues involved were worked through with the relevant agencies and resolved to my satisfaction. The Annual Report for 2002—03 noted that there was one case in the Australian Taxation Office where the Agency Head had determined not to accept the recommendation made. The report noted that the matters raised in that case were under consideration. Those matters have now also been resolved, with the agency accepting the recommendation.

This financial year the following number of applications for review by a Promotion Review Committee and other reviews of action were received:

Promotion reviews–requests for the establishment of 101 Promotion Review Committees were received (requests for 193 were received in 2002—03). Seventy-three promotion review cases were reviewed (131 cases were reviewed in 2002—03).
Applications concerning breaches of the Code of Conduct–58 applications were received (43 were received in 2002—03). Forty-six applications were reviewed (29 were reviewed in 2002—03).
Applications for review other than promotion reviews and those related to the Code of Conduct–167 other applications were received (128 were received in 2002—03). One hundred and four applications were reviewed (54 were reviewed in 2002—03).

The number of applications for review by a PRC was lower this financial year than in the previous year while the figures relating to applications concerning other reviews of action indicate that the number of Code of Conduct and other reviews has increased in comparison with the previous financial year. The reduction in the number of applications for review of promotions corresponds with a similar reduction in the number of promotions in those employment categories where existing employees have the capacity to seek a review of the decision. The increase in the number of applications concerning Code of Conduct reviews of 35% is at odds with a trend established over the last few years, which has seen the number of reviews remain static. The increase in the number of applications for other reviews of 30% is a reversal of the downward trend observed last financial year. The increase can largely be attributed to the high number of applications for review submitted by employees of the Australian Taxation Office in relation to a bulk selection exercise undertaken by that agency.

I reported last year that the then current target time frames for the different forms of reviews had been established 15 years earlier and, as they had not been reviewed to comprehend changes in the legislative framework, I had established new time frames for the completion of primary and secondary reviews. Performance information for 2003-04 shows that the bulk of reviews–apart from promotion reviews–were not completed within the expected timeframes. I will continue to monitor performance and work to ensure that reviews are completed as quickly as possible consistent with the appropriate consideration of the circumstances of each case. I will also continue to monitor review processes and workload factors and to take those into account in considering the appropriateness of timeliness targets.

There is further information on the nature of the reviews and discussion of trends under Analysis of Performance. The information in that section is structured slightly differently this year than in previous Annual Reports. It is presented in a more streamlined format, and repetition has been reduced, in order to make the information more readable and accessible.

It is interesting to note from the State of the Service Report 2002—03 that, during that financial year, agencies commenced 926 formal investigations into suspected breaches of the Code of Conduct. Applications for review resulted from less than 10% of those cases that were finalised during the financial year and resulted in a sanction. As this was the first year that information had been collected from agencies on the number of investigations undertaken, it is not possible to say how the numbers vary from previous years. The continued collection of this information will enable future comparisons to be drawn about the number of determinations that result in applications for review.

Last year’s State of the Service Report also provided some commentary about the consistency of sanctions, noting that the agency survey had indicated that there is wide variation among agencies in the number of investigations into suspected breaches of the Code of Conduct, the nature of the breaches investigated as well as the imposition of sanctions. The Review and Evaluation Group within the APS Commission is building on the information collected for the State of the Service Report through an evaluation of management of breaches of the Code of Conduct in APS agencies, which will consider the issue of consistency of sanctions. APS Commission employees who assist me in the performance of my functions are also contributing to the evaluation.

While it will be useful to see how different agencies are dealing with Code of Conduct matters it must be recognised that, as cases of alleged breaches and the imposition of sanctions must be decided on the circumstances of the case, it is inevitable that there will be different outcomes from different cases, both within and between agencies. What is important is that the process that is followed is fair, appropriate and rigorous and that, within agencies, mechanisms are in place to ensure consistency of decision making. Consideration will need to be given to any broad issues that emerge from the findings of the abovementioned evaluation, such as the application of procedural fairness, that have implications for the APS as a whole. I note that the review applications that I am receiving have not indicated that there are any systemic issues across the APS that need to be addressed.

This report continues the use of case studies on a number of reviews conducted during the year. They are based on cases from a number of regions and illustrate the range of issues dealt with, and the approaches taken in addressing those issues. The APS Commission is undertaking a Foundations project which involves a review of the formal arrangements governing organisational management within the APS. I have noted views expressed by agencies represented on the Reference Group for this review that some agencies experience difficulties in determining issues such as whether actions are reviewable and how particular cases should be handled. Agencies indicated that they would welcome more information on these and other issues, such as my role and approach to reviews. The inclusion in this report of case studies is one avenue for providing some guidance on these issues. I am also looking at including case studies on the APS Commission website.

This year I attended, along with the acting Group Manager of Regional Services (North East) and the Regional Director of the Queensland Office, the 10th National Public Sector Appeals Conference, which was held in Brisbane from3 to 5 September 2003. The conference provides an annual forum for senior representatives who are engaged in the review of employment decisions in Commonwealth,State or Territory public sector employment to share their experiences, ideas and views. I also attended the Eastern Regional Organization forPublic Administration (EROPA) 19th General Assembly and Conference and 49th Executive Council in New Delhi from 5 to 10 October 2003, where I presented a paper on ethical governance. I continued to promote my role and functions through attendance at a number of other conferences, seminars and forums during the year where I spoke about a range of issues relating to the APS Values and the APS Code of Conduct.

I held the annual meeting with all Regional Group Managers, Regional Directors and Regional Advisers in June 2004 in Sydney. The aim of this year’s meeting was to discuss both legislation and policy related issues. The meeting included a presentation from the CommonwealthOmbudsman, Professor John McMillan, and a discussion with a senior lawyer from the Office of the Australian Government Solicitor (AGS). Outcomes of the meeting included agreement on a number of policy related issues and, as a result of the discussion with AGS, progress towards settlement of a number of threshold issues relating to the review function. A number of activities that I had planned for this financial year to further promote my role and the services provided, including the production of new, simplified pamphlets on the review process and changes to the website, have been delayed pending the settlement of these threshold issues. Progressing these awareness-raising activities will be a priority in 2004—05.

Last year’s report indicated that I had co-ordinated the development of a national database of all review of action cases. The database, which provides for the collection of data in relation to most of my functions, has been operational for the financial year. This has assisted with the collection of statistics on a national level. More ready availability of statistical data has facilitated better analysis and use of the data. Refinement of the database is continuing to enable it to more fully meet my needs and the needs of the employees who assist me in the performance of my functions.

This financial year has also seen the development of an on-line system for notification to agencies of applications for review by a PRC. This system became operational in April 2004 and is now being accessed by most agencies. Facilities that will enable electronic lodgement of applications for review by a PRC are currently being investigated and are expected to be operational early in 2004—05.

In addition to the above, my other statutory functions include the establishment of Independent Selection Advisory Committees (ISACs) and a range of employment-related functions undertaken for non-APS persons or bodies, for which I may charge a fee.

The use of ISACs continues to offer agencies a number of benefits, including a cost-effective way of conducting selection exercises. While the number of agencies that use ISACs has continued to increase, the number of committees established decreased this financial year in comparison with the previous financial year (53 completed in 2003—04 compared with 93 in 2002—03). However, the high number last financial year was primarily due to an unusually large number of exercises undertaken by the Australian Taxation Office. In 2003—04, 3338 applications were considered by ISACs in recommending 648 applicants for placement. The Australian Taxation Office was still the highest ISAC user this financial year, establishing 16 committees.

The majority of the fee-for-service work undertaken on my behalf for non-APS bodies continued to be Joint Selection Committees (JSCs) established under a Memorandum of Understanding with the Australian Federal Police (AFP). The number of AFP JSCs decreased from 276 in 2002—03 to 166 in 2003—04. Additionally, training for AFP employees on selection processes was provided to ensure that there was a trained pool of staff available for future selection committees. JSCs were also undertaken for some ACT Government agencies.

Outlook for 2004—05

The anticipated settlement of some threshold issues, referred to above, relating to my role and the review function, will enable priority to be given in 2004—05 to further efforts in relation to the education of both individuals and agencies about review rights. This will involve my continued engagement in activities such as speeches and presentations as well as the review and update, where required, of information available about the review function. These activities will also assist Agency Heads in their obligation to promote and uphold the APS Values and to meet the requirements of the Code of Conduct.

I will also continue to promote the range of other services available to assist in merit-based selections, including ISACs.

This page is available from www.apsc.gov.au/annualreports/0304/mpcreview.htm
For information and help with this site go to Using our site