Chapter 11: Review rights

11.1. The Employment Principles provide, among other things, that the APS makes fair employment decisions with a fair system of review. Under s.33 of the PS Act, APS employees are entitled to reviews of actions or decisions that relate to their APS employment, with some exceptions. The PS Regulations provide the framework for the review scheme, and the limits and exceptions that apply.

11.2. Agencies should advise employees of their review rights when taking significant actions or decisions that affect their employment. These include breach determinations, sanction decisions, and decisions to suspend or assign different duties to an employee while an investigation is underway.

11.3. The MPC is an independent statutory officer established under the PS Act. In conducting a review of a breach determination or a sanction decision, the MPC will consider, among other things, whether the agency has complied with its s.15(3) procedures, whether procedural fairness has been afforded, and whether the breach determination or sanction decision is reasonable, proportionate, and fair.

Eligibility for review

Current employees

11.4. Non-SES employees who have been found to have breached the Code, and wish to challenge the determination of breach, the sanction imposed, or both, may lodge an application for review directly with the MPC under Division 5.3 of the
PS Regulations. However, a sanction of termination of employment is not reviewable under this framework.

11.5. Other decisions relating to the misconduct process may also be reviewable, including, for example, a decision to suspend the employee from duties, or to assign them to different duties temporarily while misconduct action is underway. Unlike breach and sanction decisions, these decisions are reviewable in the first instance by the employee’s agency head. If the employee is not satisfied with the outcome of the review conducted by their agency head, they can seek secondary review by the MPC.

Former employees

11.6. Former employees (other than SES) may also seek a review by the MPC of a determination that they breached the Code where the determination was made after their APS employment ceased. The relevant provisions are in Division 7.3 of the PS Regulations. As no sanction can be imposed on a former employee, the
PS Regulations do not provide for review rights for former employees in relation to sanction decisions.

Other avenues for review or remedy

Termination of employment

11.7. An employee whose APS employment has been terminated for misconduct cannot apply for review of that decision under s.33 of the PS Act, but may have access to the remedies under the Fair Work Act by making an application to the Fair Work Commission.

Other grounds for remedy by the Fair Work Commission

11.8. Employees and former employees may have other grounds for seeking remedy under the Fair Work Act, including the general protections provisions in that Act. Further information is available from the Fair Work Commission.

Judicial review

11.9. Employees and former employees may also have access to review by the courts—though this is generally on questions of law, rather than the merits of a decision. For example, under the ADJR Act the Federal Circuit and Family Court of Australia and the Federal Court of Australia have the power to review certain decisions. Generally, the courts’ role is to ensure that decision-makers acted fairly and within the law and followed proper procedures in coming to a decision. The time limit for such applications is usually 28 days from being notified of the relevant decision.

Grounds for review under the ADJR Act

11.10. Decision-makers need to be familiar with the grounds for review in ss.5 and 6 of the ADJR Act. A finding that a person has breached the Code may be invalid if the decision-maker:

• has not been appointed under the agency’s s.15(3) procedures
• fails to comply with the agency’s s.15(3) procedures
• makes a decision motivated by improper purpose
• exercises discretionary power in bad faith
• takes into account irrelevant considerations or fails to take into account relevant considerations
• acts at the direction or behest of another person
• acts unreasonably
• acts in accordance with a rule or policy without regard for the merits of the case
• acts on the basis of insufficient evidence.