Merit Protection Commissioner’s review

Under the Public Service Act 1999 and associated Regulations, a key part of my role as Merit Protection Commissioner is to provide independent external review of actions affecting individual APS employees. Undertaking this role provides support for the APS Value that ‘the APS provides a fair system of review of decisions taken in respect of APS employees’ (section 10(1)(o) of the Public Service Act).

My role of reviewing actions includes arranging review by a Promotion Review Committee (PRC) of certain engagement and promotion decisions, and reviewing other actions relating to the employment of people who are not members of the Senior Executive Service. When a promotion is reviewed, the PRC decision is binding on an agency head. When other employment actions are reviewed, I cannot compel an agency head to accept a resulting recommendation. However, if I am not satisfied with an agency head’s response to a recommendation, the Public Service Act allows me to report the matter to an agency minister, the Prime Minister and the parliament.

Agency heads accepted all but two recommendations arising from reviews during 2004–05. The recommendations not accepted dealt with reviews in the Department of Immigration and Multicultural and Indigenous Affairs, and the Aboriginal and Torres Strait Islander Services. In both cases, discussions with the agencies resolved the matters to my satisfaction.

The number of applications for review continues to fluctuate from year to year. Further information on the nature of reviews, and discussion of trends, is provided under Analysis of Performance.

During the year, a restructure of the Commission, effective from 1 December 2004, resulted in a change to regional arrangements. This change saw creation of a single regional group, and creation of a new role, Adviser to the Merit Protection Commissioner. The Adviser is now my sole delegate in the more substantive review matters, with responsibility for assuring the quality of review and whistleblowing work which, I envisage, will result in a stronger focus on this work. It is too early to form any conclusions about whether this change has had any impact on achievement of timeliness targets. Performance information for 2004–05 shows that the bulk of reviews were not completed within the expected timeframes. I will continue to monitor review processes and workload factors, including the impact of the new delegate structure, in considering the appropriateness of timeliness targets.

I have noted from the State of the Service Report 2003–04 that, during that financial year, 48 agencies finalised formal investigations into the behaviour of 1083 employees suspected of breaching the APS Code of Conduct. This data is not directly comparable with the data from 2002–03 since the questions in the two surveys were framed somewhat differently. Nevertheless, the results from the two years are not inconsistent: both indicate that less than 10% of employees who were found to have breached the Code of Conduct subsequently lodged an application for review of that determination and/or the sanction imposed.

The State of the Service Report 2003–04 also reported on the findings of an evaluation of how agencies are managing suspected breaches of the Code of Conduct. Key overall findings of the evaluation included that agencies that participated took misconduct seriously, and that while some have recently improved their processes and quality assurance methods or are currently planning improvements, others have had good quality processes and quality assurance methods in place for some time.

The evaluation also found that most cases analysed followed proper processes, and it did not report identifying any systemic issues across the APS. These findings are consistent with the indications I have had from review applications I have received, which do not suggest there are any broad issues with implications for the APS as a whole that need to be addressed.

The evaluation also considered issues of consistency of sanctions, both within agencies and across the APS, and identified some of the factors that contributed to the differences, amongst agencies, in the types of sanctions imposed. The evaluation has led to preparation of a good practice guide on agency management of suspected breaches of the Code of Conduct, due for release in the first half of 2005–06. The guide will provide a detailed discussion of the factors that should be taken into account in determining an appropriate sanction. This will help agencies achieve more consistent decision making with respect to sanctions imposed within agencies, and should also contribute to some consistency of sanctions across the APS.

This year I have continued the practice of incorporating case studies on some of the reviews we conducted during the year in this report. These case studies are a useful source of information on the review process. I reported last year that I was considering including case studies on the Commission’s web site—I will investigate dedicating resources to this task this year.

In June 2005, the Commission started reviewing the Public Service Act and associated subordinate legislation. The Public Service Commissioner has indicated that it is to be a low-key review, and I have been involved in discussions about the policy and technical issues to be addressed. I anticipate that I will continue to provide input to the review in 2005–06, as will Commission employees who help me perform my functions.

This year the Regional Director South Australia/Northern Territory and I attended the 11th National Public Sector Appeals Conference in Darwin from 4 to 6 August 2004. The conference once again provided a valuable opportunity for senior representatives engaged in reviewing employment decisions in Commonwealth, state or territory public sector employment to share their experiences, ideas and views, and included a discussion of the most challenging cases each jurisdiction had faced in the previous 12 months. During the year, I took advantage of a number of opportunities to promote my role and functions. This included presentations at various conferences and other programmes and forums, including at the invitation of several APS agencies, where I spoke about a range of issues of relevance to the APS Values and Code of Conduct.

The annual meeting of all Regional Group Managers, Regional Directors and Regional Advisers, usually held near the end of the financial year, was not held in 2004–05. I decided to change the timing of these meetings, subject to organisational needs, to early in the financial year, following agreement on the budget for that year.

I reported in 2003–04 that progress had been made towards settlement with the Australian Government Solicitor of a number of threshold issues relating to the review function, and noted that a number of activities associated with promoting my role and the services were tied to the settlement of these issues. The content of the advice in relation to these issues has been settled with the Australian Government Solicitor and I expect to be able to focus on progressing a number of awareness-raising activities in 2005–06, including the development of new simplified material on the review process.

The online system for notifying agencies of applications for a PRC review was operational for 2004–05. Feedback indicates it has been well received by agencies. The system has contributed to improved productivity in the Regional Services Group. As well, facilities to enable electronic lodgement of applications for a PRC review have been developed and became operational in February 2005. The facilities have attracted some use since that time and I expect use will increase over time.

In response to an identified need for a better system for recording and tracking the work performed on my behalf, on a fee-for-service basis, we developed and implemented the Timesheet Management System (TiMS). TiMS is a simple-to-use Internet-accessible system that employees use to record the time they spend on identified tasks. Since its introduction, in January 2005, to the Regional Services Group’s ACT Regional Office TiMS has streamlined the processing of this information, including associated payments to employees and client billing. The system is now used more widely within the Regional Services Group, as well as other areas of the Commission, and has resulted in improved productivity.

My statutory functions also include establishing Independent Selection Advisory Committees (ISACs) and other employment-related functions on a fee-for-service basis. The Australian Taxation Office undertook some bulk recruitment exercises this year that resulted in high numbers of applications for PRC review. I have subsequently had discussions with the Australian Taxation Office about the benefits of using ISACs including, in particular, that promotions made on an ISAC recommendation are not subject to review and normally result in more timely selection outcomes. The number of ISACs established in 2004–05 (similar to the number established in 2003–04) reflects a continuing recognition by agencies of the many benefits offered by using these Committees.

The number of other fee-for-service functions undertaken in 2004–05 is higher than in 2003–04 and reflects, in particular, the higher number of Joint Selection Committees established for the Australian Federal Police . The Joint Selection Committees are established under a memorandum of understanding with the Australian Federal Police, and the number undertaken fluctuates each year according to Australian Federal Police needs. There is more information on ISACs and other fee-for-service activities later in this report.

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Outlook for 2005–06

My priorities for 2005–06 include contributing to the review of the Public Service Act and, following resolution of issues about my role and the review function, increasingly focusing on activities associated with education about the review function. In that context, I will continue to promote my role and functions through activities such as speeches and presentations. I also intend to re-evaluate the information currently available on review rights, with a view to updating it where necessary and ensuring information is provided in ways that best meet the needs of both employees and agencies.

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