2011
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Chief Minister)
Public Sector Management (One ACT Public Service) Amendment Bill 2011

Contents
	Page
	
	1	Name of Act	2
	2	Commencement	2
	3	Legislation amended	2
	4	Legal effect
Section 11 (2)	2
	5	Division 2.2	2
	6	Section 13	3
	7	Machinery of government changes—officers
Section 15 (1)	4
	8	General functions
Section 20 (1) (b)	4
	9	Section 20 (2)	4
	10	Review of government agencies or functions
Sections 21 (4) and (5)	4
	11	Section 21 (6)	5
	12	New section 21 (8)	5
	13	New division 3.2A	6
	14	Powers of chief executive officers of certain territory instrumentalities Section 24 (2) and (3)	16
	15	Powers of certain statutory office-holders 
Section 25 (2) to (4)	16
	16	Powers relating to certain Calvary Health Care staff 
Section 26 (2) and (3)	17
	17	Sections 27, 28 and 28AA	17
	18	Section 28A heading	20
	19	Section 28B heading	20
	20	Section 28C heading	20
	21	Section 28D heading	20
	22	Chief executives—responsibilities
Section 29	20
	23	Chief executives—temporary contracts
Section 30 (3)	21
	24	Chief executives—variation of temporary contracts
Section 30A (1)	21
	25	Section 31	21
	26	Section 31A heading	22
	27	Section 32 heading	22
	28	Section 33 heading	22
	29	Section 33B heading	22
	30	Section 34 heading	23
	31	Section 35 heading	23
	32	Section 36	23
	33	Equal employment opportunity programs
Section 40 (1)	26
	34	Section 40 (1) (c) and (2)	26
	35	Access and equity programs
Section 41 (1)	26
	36	Section 41 (1) (c) and (2)	26
	37	Industrial democracy programs
Section 42 (1)	27
	38	Section 42 (1) (c) and (2)	27
	39	Development of programs in autonomous instrumentalities
Section 43 (c)	27
	40	Section 54	27
	41	Creation and abolition of offices
Section 54A (2)	28
	42	Division 4.1A heading	28
	43	Section 54B	28
	44	Creation and abolition of offices
Section 55 (1)	28
	45	Reclassification of offices
Sections 58 (1) and (2)	29
	46	Reclassification of offices in autonomous instrumentalities
Section 59	29
	47	Section 59A	29
	48	Hours of attendance of certain unattached officers
Section 62 (2) (a)	30
	49	Application of merit principle
Section 65 (1) (b) and (c)	30
	50	Section 65 (2)	30
	51	Section 66A	30
	52	Employment in the service
Sections 67 (a) and (b)	31
	53	Appointments generally
Section 68 (2) (c)	31
	54	Classification of unattached officers
Section 69	31
	55	Appointment on probation
Section 70 (6)	32
	56	Appointment on probation—prescribed training office
Section 71 (6)	32
	57	Appointment on probation—teachers
Section 71A (6)	32
	58	Appointment without probation
Section 71C (1)	32
	59	Section 71C (2)	33
	60	Notice or payment if executive not re-engaged
Section 75A (1)	33
	61	Section 75A (4) (c), note	33
	62	Section 78	33
	63	Executives—transfer or assignment
Section 80A (2) (a)	34
	64	New section 80A (6)	34
	65	Definitions—div 5.5
Section 82, definition of office	35
	66	Section 83	35
	67	Promotion on advice of joint selection committee
Section 87 (1)	35
	68	Definitions—div 5.6
Section 91, definition of office	36
	69	Transfer to vacant office 
Section 92 (2)	36
	70	Simultaneous transfer within administrative unit
Section 93 (2)	36
	71	Section 94	37
	72	Section 95	37
	73	Management initiated transfer—between administrative units
Section 96 (2)	38
	74	Transfer on advice of joint selection committee 
Section 96B (1)	38
	75	New section 96B (2A)	38
	76	Transfers and promotions to specified offices may be made in accordance with order of passing examinations
Section 97 (4)	39
	77	Promotion of officers who complete courses of training for special positions
Section 98 (4)	39
	78	Temporary transfer
Section 100 (1)	39
	79	Sections 100 (6) and (7)	40
	80	Lapsing or discontinuing of appeal
Section 103 (2)	40
	81	Section 105	40
	82	Power to engage temporary employee
Section 106 (1)	41
	83	Temporary employment—fixed term less than 12 months
Section 107 (1)	41
	84	Temporary employment—fixed term not more than 5 years
Section 108 (1)	41
	85	Termination of temporary employment
Section 112 (2)	41
	86	Engagement of certain former officers as employees, and contracts with certain former officers, prohibited
Section 114	42
	87	Section 114 (c)	42
	88	Reappointment of retired officers
Sections 117 (1) and (2)	42
	89	Section 117 (5)	43
	90	Reappointment of unsuccessful election candidates
Section 118 (3)	43
	91	Quashing etc of conviction
Section 118A (5)	43
	92	Section 118A (7), definition of appropriate office, paragraph (b)	43
	93	Unattached officers
Section 119 (1)	44
	94	Definitions—pt 6
Section 139, definition of officer, paragraph (b)	44
	95	Section 140	44
	96	Redeploy or retire officer from service
Section 143 (1)	45
	97	Section 143 (2)	45
	98	Forfeiture of office
Section 221 (5)	45
	99	Reappointment of officers taken to have retired under s 221
Section 222 (5)	45
	100	Definitions—pt 11
Section 223, definition of officer	45
	101	Section 241	46
	102	Engagement of certain former officers and employees prohibited
Section 248A (2)	46
	103	Engagement of certain former chief executives and executives prohibited
Section 248B (1) (a)	46
	104	Section 248B (2)	47
	105	New section 248C	47
	106	Dictionary, definition of administering chief executive	47
	107	Dictionary, definition of appeal committee	47
	108	Dictionary, definition of authorised doctor	47
	109	Dictionary, definitions of authorised officer, chief executive and direction	48
	110	Dictionary, new definition of director-general	48
	111	Dictionary, definition of eligible public employment	48
	112	Dictionary, definition of employee	48
	113	Dictionary, new definition of head of service	49
	114	Dictionary, definition of notified	49
	115	Dictionary, definition of office, paragraph (a)	49
	116	Dictionary, new definitions	49
	117	Dictionary, definitions of relevant chief executive and review	49
	118	Dictionary, definition of service	50
	119	Dictionary, definition of specified	50
	120	Dictionary, definition of unattached officer	50
	121	Further amendments, mentions of a chief executive	50
	122	Further amendments, mentions of administering chief executive	51
	123	Further amendments, mentions of chief executive	51
	124	Further amendments, mentions of chief executive	52
	125	Further amendment, mention of chief executive of an administrative unit	52
	126	Further amendments, mentions of chief executive of the administrative unit	53
	127	Further amendments, mentions of chief executives	53
	128	Further amendment, mentions of chief executive’s	54
	129	Further amendments, mentions of Chief Minister	54
	130	Further amendments, mentions of commissioner	55
	131	Further amendments, mentions of relevant chief executive	56
	132	Further amendment, mention of relevant chief executive’s	57

2011
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Chief Minister)
Public Sector Management (One ACT Public Service) Amendment Bill 2011

A Bill for
An Act to amend the Public Sector Management Act 1994

    

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1	Name of Act
This Act is the Public Sector Management (One ACT Public Service) Amendment Act 2011.
2	Commencement
This Act commences on 1 July 2011.
Note	The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
3	Legislation amended
This Act amends the Public Sector Management Act 1994.
4	Legal effect
Section 11 (2)
omit
part 9
substitute
the misconduct procedures that apply to a public employee or section 122 (Termination of employment)
5	Division 2.2 
substitute
Division 2.2	ACT Public Service
12	ACT Public Service
	(1)	The ACT Public Service is established.
Note	Establish includes constitute and continue in existence (see Legislation Act, dict, pt 1).
	(2)	The ACT Public Service is made up of the administrative units established under section 13.
	(3)	The members of the ACT Public Service are—
	(a)	the head of service; and
	(b)	the directors-general; and
	(c)	the executives; and
	(d)	other employees; and
	(e)	officers.
	(4)	The Territory is the employer of all members of the service.
6	Section 13
substitute
13	Administrative units
	(1)	The Chief Minister may establish administrative units.
	(2)	An administrative unit is made up of the offices within the administrative unit.
Note	The office of director-general for an administrative unit is established when the administrative unit is established (see s 27 (1)).
	(3)	An instrument under subsection (1) is a notifiable instrument.
Note 	A notifiable instrument must be notified under the Legislation Act.
7	Machinery of government changes—officers
Section 15 (1)
omit
Chief Minister or the commissioner
substitute
head of service
8	General functions
Section 20 (1) (b)
omit
9	Section 20 (2)
omit
10	Review of government agencies or functions
Sections 21 (4) and (5)
substitute
	(4)	The commissioner must notify the head of service and the relevant agency manager in writing before starting the review.
	(5)	On completion of the review, the commissioner may make recommendations to the head of service and the relevant agency manager on the action that should be taken, or could be taken, to give effect to any proposals arising from the review.
11	Section 21 (6)
substitute
	(6)	If the relevant agency manager disagrees with the recommendations or does not implement them within a reasonable time, the relevant agency manager must—
	(a)	notify the relevant Minister and the Chief Minister of his or her reasons for disagreeing with the recommendations or not taking action to implement them; and
	(b)	give a copy of the reasons to the commissioner and the head of service.
12	New section 21 (8)
insert
	(8)	In this section:
relevant agency manager means—
	(a)	in relation to an administrative unit—the director-general of the unit; or
	(b)	in relation to a territory instrumentality, including the officers and employees employed, or to be employed, in the territory instrumentality—the person who has the powers mentioned in section 24 (2) (a) in relation to the staff; or
	(c)	in relation to a statutory office, including the officers and employees employed, or to be employed, to assist the statutory office-holder—the statutory office-holder, if the office-holder has the powers mentioned in section 25 (2A) (a) in relation to the staff.
13	New division 3.2A
insert
Division 3.2A	Head of service
23A	Office of head of service
The office of Head of Service is established.
23B	Head of service—functions
	(1)	The head of service is responsible for the service as a whole.
	(2)	Without limiting subsection (1), the head of service has the following functions:
	(a)	management of the service;
	(b)	development and implementation of whole-of-government strategies;
	(c)	provision of advice and reports to the Chief Minister about whole-of-government issues;
	(d)	coordination of activities and outcomes across administrative units;
	(e)	direction of administrative units in relation to critical or potentially critical issues;
	(f)	approval of the structure of the administrative units;
	(g)	management of the employment of members of the service;
	(h)	management of the exercise by directors-general of their functions; 
	(i)	any other function given to the head of service—
	(i)	by the Chief Minister; or 
	(ii)	under this Act or another territory law.
23C	Head of service—engagement
	(1)	The Chief Minister may engage a person as the head of service. 
	(2)	The person must be engaged under a contract with the Territory.
	(3)	The contract must—
	(a)	be in writing; and
	(b)	be signed by the person and the Chief Minister, on behalf of the Territory; and
	(c)	state the period during which the person is engaged as head of service.
	(4)	The period mentioned in subsection (3) (c) must not be longer than 5 years.
	(5)	Subject to this Act, the employment of the head of service under this section is governed by the contract under which the head of service is engaged.
23D	Head of service may also be engaged as director-general of Chief Minister’s administrative unit
	(1)	The person engaged as the head of service may also be engaged by the Chief Minister as the director-general (the CM director-general) of the administrative unit administered by the Chief Minister. 
	(2)	The engagement of the person as the CM director-general under this section is governed by the contract made under section 23C.
23E	Head of service—contract variation
	(1)	The head of service’s contract may be varied at any time by a written agreement signed by the head of service and the Chief Minister, on behalf of the Territory.
Note	If the head of service is transferred or assigned under s 23N, the head of service’s contract is taken to be varied by the transfer or assignment (see s 23N (3)).
	(2)	However, a variation of the head of service’s contract that would do either of the following is void:
	(a)	extend the period of employment under the contract—
	(i)	to longer than 5 years, unless the contract as varied requires the head of service to be on leave for the period of employment that is longer than 5 years; or
	(ii)	to longer than 5 years and 3 months, whether or not the contract as varied requires the head of service to be on leave for the period of employment that is longer than 5 years;
	(b)	increase the rate at which remuneration or an allowance is payable to the head of service otherwise than in accordance with the management standards.
23F	Head of service—early termination of contract
	(1)	The head of service’s contract may include provision for termination of the head of service’s employment before the end of the period of employment stated in the contract (a termination provision).
	(2)	If the head of service’s contract includes a termination provision, the contract must state the grounds for termination.
	(3)	The grounds must not include—
	(a)	the ground that the head of service is incompatible with another person; or
	(b)	any ground to the same effect.
	(4)	If a contract is terminated in accordance with a termination provision, no benefit is payable in relation to the termination other than the benefit, if any, prescribed for this subsection.
	(5)	The head of service’s employment may not be terminated on the ground of invalidity unless—
	(a)	if the head of service is an eligible employee for the Superannuation Act 1976 (Cwlth)—
	(i)	the head of service has not reached the head of service’s maximum retiring age within the meaning of the Act; and
	(ii)	a certificate has been given by the Commonwealth Superannuation Board of Trustees No 2 under the Act, section 54C for the head of service; or
	(b)	if the head of service is a member of the superannuation scheme established under the Superannuation Act 1990 (Cwlth)—
	(i)	the head of service is under 60 years old; and
	(ii)	a certificate has been given by the Commonwealth Superannuation Board of Trustees No 1 under the Act, section 13 for the head of service; or
	(c)	if the head of service is an ordinary employer-sponsored member of PSSAP within the meaning of the Superannuation Act 2005 (Cwlth)—
	(i)	the head of service is under 60 years old; and
	(ii)	a certificate has been given by the Commonwealth Superannuation Board of Trustees No 1 under the Act, section 43 for the head of service.
	(6)	In this section:
invalidity means—
	(a)	for an eligible employee for the Superannuation Act 1976 (Cwlth)—invalidity under the Act; or
	(b)	for a member of the superannuation scheme established under the Superannuation Act 1990 (Cwlth)—invalidity under the Act; or
	(c)	for an ordinary employer-sponsored member of PSSAP within the meaning of the Superannuation Act 2005 (Cwlth)—invalidity under the Act.
23G	Head of service—effect of contract on responsibilities of Ministers
Nothing in the head of service’s contract limits the responsibility of the Minister administering an administrative unit for—
	(a)	the policies developed or applied by the administrative unit; or
	(b)	the financial and other performance of the administrative unit.
23H	Head of service—application of merit principle to re‑engagements
Section 65 (1), (3) and (4) does not apply in relation to a second or subsequent engagement of a person to exercise the functions of the office of head of service if—
	(a)	the period of the second or subsequent engagement is to start immediately on the day after the previous engagement ends; and
	(b)	the Chief Minister has certified in writing that the Chief Minister is satisfied that it would be in the interests of the service for the person to be re-engaged to exercise those functions.
23I	Head of service—notice or payment if not re-engaged
	(1)	At least 3 months before the day the head of service’s contract ends, the Chief Minister may give the head of service written notice that the head of service will not be re-engaged.
	(2)	An amount equal to 1/4 of the head of service’s final annual salary is payable to the head of service by the Territory if, when the head of service’s contract ends—
	(a)	the Chief Minister has not given a notice under subsection (1); and
	(b)	the head of service has not accepted another position in the public sector; and
	(c)	the head of service is not entitled to a redundancy payment, however described, for not being re-engaged.
Note	Section 248C provides that the Territory must not, without consulting the commissioner, within 3 months after the day the contract ends, employ a person who has received, or is entitled to, an amount mentioned in this subsection.
	(3)	The amount must be paid within 3 months after the day the head of service’s contract ends.
	(4)	This section does not apply if the head of service’s contract is terminated before the end of the period of employment stated in the contract.
Note	For the termination of the head of service’s contract, see s 23F (Head of service—early termination of contract).
	(5)	In this section:
final annual salary, for the head of service, means the head of service’s annual remuneration under the head of service’s contract as at the day the contract ends, but does not include cash payments (for example, cash payments instead of employer-provided benefits).
Note	An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
23J	Head of service—temporary contract
	(1)	This section applies if—
	(a)	the head of service cannot for any reason exercise the head of service’s functions; or
	(b)	the office of head of service is vacant.
	(2)	A director-general may be engaged to act as head of service.
	(3)	The person must be engaged under a contract with the Territory.
	(4)	The contract—
	(a)	must be in writing; and
	(b)	must be signed by the person and the Chief Minister, on behalf of the Territory; and
	(c)	must state the period during which the person is to act as head of service; and
	(d)	may vary the terms of the person’s contract under section 28 (Directors-general—engagement).
	(5)	The period mentioned in subsection (4) (c) must not be longer than 2 years.
	(6)	Subject to this Act, the employment of a person under this section is governed by the contract under which the person is engaged.
23K	Head of service—termination of temporary contract
	(1)	A contract under section 23J may be terminated at any time by one party giving written notice to the other.
	(2)	A person is not entitled to any compensation for the termination of a contract under this section.
23L	Head of service—variation of temporary contract
	(1)	A contract under section 23J may be varied at any time by a written agreement signed by the acting head of service and the Chief Minister, on behalf of the Territory.
	(2)	However, a variation that extends the period of employment under the contract to longer than 2 years is void.
23M	Head of service—presentation of contract and contract variations 
The Chief Minister must present a copy of the following contracts and any contract variation to the Legislative Assembly within 6 sitting days after the day the contract or variation is made:
	(a)	the head of service’s contract under section 23C; 
	(b)	any temporary contract under section 23J.
23N	Head of service—transfer or assignment
	(1)	The Chief Minister may, in writing—
	(a)	transfer the person engaged as the head of service under section 23C from that office to an office of director-general; or
	(b)	assign the person to exercise other stated functions in the public sector.
	(2)	The Chief Minister may transfer or assign the person only if the Chief Minister has—
	(a)	given the person an opportunity to state the person’s views about the transfer or assignment; and
	(b)	considered the person’s views, if any.
	(3)	The transfer or assignment is taken to be a variation of the head of service’s contract.
	(4)	The transfer or assignment of a person under this section does not affect—
	(a)	the rate at which remuneration or an allowance is payable to the person under the contract; or
	(b)	the period of the person’s employment under the contract; or
	(c)	the right to terminate the person’s employment if the contract provides for termination under section 23F (Head of service—early termination of contract).
	(5)	If a person engaged as the head of service is transferred to an office of director-general, or assigned to exercise stated functions, under this section, the person must exercise the functions of the office or exercise the stated functions.
23O	Head of service—notification of head of service’s engagement etc
The Chief Minister must notify in the gazette each of the following within 28 days after the day it happens:
	(a)	the making of the head of service’s contract under section 23C;
	(b)	any termination of the contract;
	(c)	the end of the period of engagement of the head of service;
	(d)	any transfer or assignment of the head of service under section 23N.
23P	Head of service—paid employment outside the service
The head of service must not, except in accordance with the written approval of the Chief Minister, accept or engage in any paid employment other than in relation to the exercise of the head of service’s functions in the service.
23Q	Head of service—engagement or transfer not affected by defect etc
	(1)	An engagement or transfer, or anything done in relation to the engagement or transfer, is not invalid only because of a defect or irregularity in or in relation to the engagement or transfer.
	(2)	In this section:
engagement means an engagement of the head of service under section 23C (Head of service—engagement) or section 23J (Head of service—temporary contract).
transfer means a transfer or assignment of the head of service under section 23N (Head of service—transfer or assignment).
14	Powers of chief executive officers of certain territory instrumentalities
Section 24 (2) and (3) 
substitute
	(2)	The chief executive officer of the territory instrumentality has the following powers in relation to the instrumentality staff as if the staff were employed in an administrative unit:
	(a)	the powers of the head of service relating to the appointment, engagement and employment of people; 
	(b)	the powers of a director-general.
15	Powers of certain statutory office-holders
Section 25 (2) to (4) 
substitute
	(2)	Subsection (3) applies if—
	(a)	the Chief Minister makes a declaration under subsection (4); or
	(b)	this Act or another territory law gives (however expressed) the powers mentioned in subsection (3) to the statutory office holder.
Examples—par (b)
1	the clerk under section 54 (2)
2	the auditor-general under the Auditor-General Act 1996, section 23
3	the director of public prosecutions under the Director of Public Prosecutions Act 1990, section 30
Note	An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
	(3)	The statutory office-holder has the following powers in relation to the office staff as if the staff were employed in an administrative unit:
	(a)	the powers of the head of service relating to the appointment, engagement and employment of people; 
	(b)	the powers of a director-general.
	(4)	The Chief Minister may declare that the statutory office-holder has the powers mentioned in subsection (3) in relation to the office staff.
16	Powers relating to certain Calvary Health Care staff
Section 26 (2) and (3) 
substitute
	(2)	The chief executive officer, Calvary has the following powers in relation to the people employed in Calvary public health care as if the people were employed in an administrative unit:
	(a)	powers of the head of service relating to the appointment, engagement and employment of people; 
	(b)	powers of a director-general.
17	Sections 27, 28 and 28AA
substitute
27	Office of director-general
	(1)	An office of director-general for an administrative unit is established when the administrative unit is established.
	(2)	An office of director-general for an administrative unit ceases to exist if the administrative unit ceases to exist.
28	Directors-general—engagement
	(1)	The head of service may engage a person to exercise the functions of an office of director-general. 
Note	The head of service may also be engaged as the director-general (the CM director-general) of the administrative unit administered by the Chief Minister (see s 23D (1)). The engagement of the head of service as the CM director-general is governed by the contract made under section 23C (see s 23D (2)).
	(2)	The person must be engaged under a contract with the Territory.
	(3)	The contract must—
	(a)	be in writing; and
	(b)	be signed by the person and the head of service, on behalf of the Territory; and
	(c)	state the period during which the person is engaged as a director‑general.
	(4)	The period mentioned in subsection (3) (c) must not be longer than 5 years.
	(5)	Subject to this Act, the employment of a director-general under this section is governed by the contract under which the director-general is engaged.
28AA	Directors-general—functions
	(1)	A director-general has the following functions in relation to the administrative unit under the director‑general’s control:
	(a)	under the relevant Minister, management of the administration and business of the unit;
	(b)	provision of advice and reports to the relevant Minister on all matters relating to the unit;
	(c)	implementation, at the direction of the head of service of—
	(i)	whole‑of‑government strategies; and
	(ii)	responses to critical or potentially critical issues;
	(d)	any other function given to the director-general—
	(i)	by the head of service; or 
	(ii)	under this Act or another territory law.
	(2)	A director-general must, in exercising the director-general’s functions, take into account—
	(a)	whole-of-government strategies and issues; and 
	(b)	how the exercise of those functions will impact on the service as a whole.
28AB	Directors-general—contract variation
	(1)	A contract under section 28 may be varied at any time by a written agreement signed by the director-general and the head of service, on behalf of the Territory.
Note	If a person engaged by a contract under s 28 is transferred or assigned under s 33A, the person’s contract is taken to be varied by the transfer or assignment (see s 33A (4)).
	(2)	However, a variation of a contract under section 28 that would do either of the following is void:
	(a)	extend the period of employment under the contract—
	(i)	to longer than 5 years, unless the contract as varied requires the person employed to be on leave for the period of employment that is longer than 5 years; or
	(ii)	to longer than 5 years and 3 months, whether or not the contract as varied requires the person employed to be on leave for the period of employment that is longer than 5 years;
	(b)	increase the rate at which remuneration or an allowance is payable to the person employed otherwise than in accordance with the management standards.
18	Section 28A heading
substitute
28A	Directors-general—early termination of contract
19	Section 28B heading
substitute
28B	Directors-general—effect of contracts on responsibilities of Ministers 
20	Section 28C heading
substitute
28C	Directors-general—application of merit principle to re‑engagements
21	Section 28D heading
substitute
28D	Directors-general—notice or payment if not re-engaged
22	Chief executives—responsibilities
Section 29
omit
23	Chief executives—temporary contracts
Section 30 (3)
substitute
	(3)	The contract must—
	(a)	be in writing; and
	(b)	be signed by the person and the head of service, on behalf of the Territory; and
	(c)	state the period during which the person is engaged to act as a director‑general.
24	Chief executives—variation of temporary contracts
Section 30A (1)
substitute
	(1)	A contract under section 30 may be varied at any time by a written agreement signed by the director-general and the head of service, on behalf of the Territory.
25	Section 31
substitute
31	Head of service must consult with Ministers about engagements etc
	(1)	This section applies to the engagement, or proposed engagement, of a person to exercise the functions of an office of director-general.
	(2)	The head of service must have regard to the advice of the Chief Minister and the Minister responsible for the administrative unit about the proposed engagement before entering into a contract with the person, or any variation of the contract.
	(3)	In this section:
engagement means an engagement under section 28 (Directors‑general—engagement) or section 30 (Directors‑general—temporary contracts).
26	Section 31A heading
substitute
31A	Directors-general—presentation of contracts and variations of contracts
27	Section 32 heading
substitute
32	Directors-general—engagements not affected by defects etc
28	Section 33 heading
substitute
33	Directors-general—employment to perform duties of multiple positions
29	Section 33B heading
substitute
33B	Directors-general—transfers or assignments under s 33A not affected by defects etc
30	Section 34 heading
substitute
34	Directors-general—notification of engagement etc
31	Section 35 heading
substitute
35	Directors-general—paid employment outside the service
32	Section 36
substitute
36	Meaning of public sector officer—div 3.5
In this division:
public sector officer means—
	(a)	an officer or employee; or
	(b)	a statutory office-holder; or
	(c)	a person exercising a function on behalf of the Territory otherwise than as—
	(i)	an officer or employee; or
	(ii)	a statutory office-holder.
36A	Delegation by head of service
The head of service may—
	(a)	delegate to a public sector officer the head of service’s functions under this Act or any other law; or
	(b)	subdelegate to a public sector officer the functions delegated to the head of service under a law other than this Act.
Note	For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.
36B	Delegation by commissioner
The commissioner may—
	(a)	delegate to a public sector officer the commissioner’s functions under this Act or any other law; or
	(b)	subdelegate to a public sector officer the functions delegated to the commissioner under a law other than this Act.
Note	For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.
36C	Delegation by directors-general
A director-general may—
	(a)	delegate to a public sector officer the director-general’s functions under this Act or any other law; or
	(b)	subdelegate to a public sector officer—
	(i)	the functions in relation to the appointment or employment of people delegated to the director-general by the head of service under this Act; and
	(ii)	the functions under the management standards delegated to the director-general by the head of service under this Act; and
	(iii)	the functions delegated to the director-general under a law other than this Act.
Note	For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.
36D	Delegations by head of service, commissioner and directors-general—generally
	(1)	A delegator must not delegate a function under this division to a non-service delegate unless the delegator considers that the tasks to be undertaken by the non-service delegate require the exercise of that function.
	(2)	A delegator who has delegated or subdelegated a function under this division may give directions to the delegate or subdelegate in relation to the exercise of the function.
	(3)	Subsection (4) applies if the delegation or subdelegation of a function under this division is expressed to be given to people who occupy or exercise the functions of an office of a kind described in the delegation or subdelegation.
	(4)	The delegation or subdelegation extends to any person who occupies, or exercises the functions of, an office of a kind described in the delegation or subdelegation, even if the office does not come into existence until after the delegation or subdelegation is given.
	(5)	In this section:
delegator means—
	(a)	the commissioner; or
	(b)	the head of service; or
	(c)	a director-general.
non-service delegate means a person exercising a function on behalf of the Territory otherwise than as—
	(a)	an officer or employee; or
	(b)	a statutory office-holder.
33	Equal employment opportunity programs
Section 40 (1)
omit everything before paragraph (a), substitute
	(1)	The commissioner must—
34	Section 40 (1) (c) and (2)
after
Chief Minister
insert
and the head of service
35	Access and equity programs
Section 41 (1)
omit everything before paragraph (a), substitute
	(1)	The commissioner must—
36	Section 41 (1) (c) and (2)
after
Chief Minister
insert
and the head of service
37	Industrial democracy programs
Section 42 (1)
omit everything before paragraph (a), substitute
	(1)	The commissioner must—
38	Section 42 (1) (c) and (2)
after
Chief Minister
insert
and the head of service
39	Development of programs in autonomous instrumentalities
Section 43 (c)
substitute
	(c)	the reference to Chief Minister and the head of service is taken to be a reference to the Chief Minister, the relevant Minister and the head of service.
40	Section 54
substitute
54	Legislative Assembly—staff
	(1)	The staff required to assist the clerk in the exercise of the clerk’s functions must be employed under this Act.
	(2)	The clerk has the powers mentioned in section 25 (3) in relation to the clerk’s staff.
41	Creation and abolition of offices
Section 54A (2)
omit
42	Division 4.1A heading
substitute
Division 4.1A	Creation and abolition of non‑executive offices 
43	Section 54B
substitute
54B	Meaning of office—div 4.1A
In this division:
office means an office other than—
	(a)	the office of head of service; or
	(b)	an office of director-general; or
	(c)	an executive office.
44	Creation and abolition of offices
Section 55 (1)
substitute
	(1)	For the purpose of enabling an administrative unit to exercise its functions, the head of service may in writing—
	(a)	create an office in an administrative unit; or
	(b)	abolish an office in an administrative unit.
45	Reclassification of offices
Sections 58 (1) and (2)
substitute
	(1)	Subject to the management standards, the head of service may, in writing, alter the classification of an office in an administrative unit to the classification stated in the instrument.
	(2)	The stated classification must be an approved classification under section 56 (1).
46	Reclassification of offices in autonomous instrumentalities
Section 59
omit
47	Section 59A
substitute
59A	Meaning of office—div 4.2
In this division:
office means an office other than—
	(a)	the office of head of service; or
	(b)	an office of director-general; or
	(c)	an executive office.
48	Hours of attendance of certain unattached officers
Section 62 (2) (a)
omit
section 192 or section 193
substitute
section 118A
49	Application of merit principle
Section 65 (1) (b) and (c)
substitute
	(b)	an engagement under section 23C (Head of service—engagement); 
	(c)	an engagement under section 28 (Directors-general—engagement) or section 72 (Executives—engagement); 
	(ca)	an engagement by a contract under section 23J (Head of service—temporary contract), section 30 (Directors-general—temporary contracts) or section 76 (Executives—temporary contracts), if the period of engagement is more than 9 months; 
50	Section 65 (2)
omit everything before paragraph (a), substitute
	(2)	The head of service in exercising the function must ensure that—
51	Section 66A
substitute
66A	Application—div 5.3
This division does not apply in relation to the engagement of the head of service, a director-general or an executive.
52	Employment in the service
Sections 67 (a) and (b)
substitute
	(a)	by engagement under section 23C or section 23J to exercise the functions of the office of the head of service; or
	(b)	by engagement under section 28 or section 30 to exercise the functions of an office of director-general; or
	(ba)	by engagement under section 72 or section 76 to exercise the functions of an executive office; or
53	Appointments generally
Section 68 (2) (c)
omit
the commissioner, or the chief executive making the appointment, as the case may be,
substitute
the head of service
54	Classification of unattached officers
Section 69
omit
chief executive making the appointment
substitute
the head of service
55	Appointment on probation
Section 70 (6)
substitute
	(6)	The head of service must not, without consulting the commissioner, appoint an officer, whose appointment has been ended under this section, within 12 months after the day the appointment ends.
56	Appointment on probation—prescribed training office
Section 71 (6)
substitute
	(6)	The head of service must not, without consulting the commissioner, appoint an officer, whose appointment has been ended under this section, within 12 months after the day the appointment ends.
57	Appointment on probation—teachers
Section 71A (6)
substitute
	(6)	The head of service must not, without consulting the commissioner, appoint an officer as a teacher, whose appointment has been ended under this section, within 12 months after the day the appointment ends.
58	Appointment without probation
Section 71C (1)
omit everything before paragraph (a), substitute
	(1)	The head of service may appoint a person to an office without probation if satisfied that—
59	Section 71C (2)
omit everything before paragraph (a), substitute
	(1)	The head of service must not appoint a person to an office without probation unless satisfied that—
60	Notice or payment if executive not re-engaged
Section 75A (1)
omit
relevant chief executive for the person
substitute
head of service
61	Section 75A (4) (c), note
omit
without the commissioner’s written consent
substitute
without consulting the commissioner
62	Section 78
substitute
78	Executives—negotiation and execution of contracts
	(1)	The following contracts and contract variations must be signed for the Territory by the head of service:
	(a)	a contract under section 72 (Executives—engagement) or section 76 (Executives—temporary contracts);
	(b)	a variation of a contract under section 72A (Executives—contract variation) or section 76A (Executives—variation of temporary contracts);
	(c)	a contract under section 72 or section 76 to engage a person to exercise the functions of the position of chief executive officer, Calvary;
	(d)	a variation of a contract mentioned in paragraph (c) under section 72A or section 76A.
	(2)	In this section:
chief executive officer, Calvary—see section 26 (4) (Powers relating to certain Calvary Health Care staff).
63	Executives—transfer or assignment
Section 80A (2) (a)
substitute
	(a)	consulted—
	(i)	the relevant agency manager that would gain the person; and
	(ii)	the relevant agency manager that would release the person; and
64	New section 80A (6)
insert
	(6)	In this section:
relevant agency manager—see section 21 (8) (Review of government agencies or functions).
65	Definitions—div 5.5
Section 82, definition of office
substitute
office means an office other than—
	(a)	the office of head of service; or
	(b)	an office of director-general; or
	(c)	an executive office.
66	Section 83 
substitute
83	Promotion to vacant office
	(1)	The head of service may promote an officer to fill a vacant office if the prescribed requirements are met.
	(2)	If an officer is promoted under this division the head of service must give written notice of the promotion to the officer.
67	Promotion on advice of joint selection committee
Section 87 (1)
omit everything before paragraph (a), substitute
	(1)	The head of service may promote an officer to fill a vacant office if—
68	Definitions—div 5.6
Section 91, definition of office
substitute
office means an office other than—
	(a)	the office of head of service; or
	(b)	an office of director-general; or
	(c)	an executive office.
69	Transfer to vacant office
Section 92 (2) 
substitute
	(2)	The head of service may transfer an officer from within an administrative unit to fill a vacant office in the unit if—
	(a)	the head of service consults with the director-general of the administrative unit; and
	(b)	the prescribed requirements are met.
70	Simultaneous transfer within administrative unit
Section 93 (2)
substitute
	(2)	The head of service may transfer the officers if—
	(a)	the head of service consults with the director-general of the administrative unit; and
	(b)	the prescribed requirements are met.
71	Section 94 
substitute
94	Transfer between administrative units
The head of service may transfer an officer in an administrative unit to a vacant office in another administrative unit, if the head of service consults—
	(a)	the director-general of the administrative unit that would gain the officer; and
	(b)	the director-general of the administrative unit that would release the officer.
72	Section 95 
omit everything before subsection (3), substitute
95	Management initiated transfer—within administrative unit
	(1)	This section applies if the head of service is satisfied on reasonable grounds that the efficient administration of an administrative unit requires the transfer of an officer from one part of the unit to another.
	(2)	The head of service may transfer an officer to fill a vacant office in the administrative unit if—
	(a)	the head of service consults the director-general of the unit; and
	(b)	gives the officer an opportunity to state the officer’s views in relation to the transfer; and
	(c)	considers the views of the officer.
73	Management initiated transfer—between administrative units
Section 96 (2)
omit everything before paragraph (b), substitute
	(2)	The head of service may transfer the officer from one administrative unit to another if the head of service—
	(a)	consults—
	(i)	the officer; and
	(ii)	the director-general of the administrative unit that would gain the officer; and
	(iii)	the director-general of the administrative unit that would release the officer; and
74	Transfer on advice of joint selection committee
Section 96B (1) 
omit everything before paragraph (a), substitute
	(1)	The head of service may transfer an officer to fill a vacant office in an administrative unit if—
75	New section 96B (2A)
insert
	(2A)	The head of service must consult the director-general of the administrative unit about the recommendation.
76	Transfers and promotions to specified offices may be made in accordance with order of passing examinations
Section 97 (4)
omit
then, if the chief executive of the administrative unit in which the vacant office exists or the vacant offices exist—
substitute
then, if the head of service—
77	Promotion of officers who complete courses of training for special positions
Section 98 (4)
omit everything before paragraph (a), substitute
	(4)	Subject to subsection (5), if there is a vacancy in an office that is, in relation to a training office, a relevant higher office, the head of service must—
78	Temporary transfer
Section 100 (1)
substitute
	(1)	The head of service may temporarily transfer an officer from an administrative unit to exercise the whole, or part, of the functions of another office in the unit if—
	(a)	the head of service consults the director-general of the unit; and
	(b)	the prescribed requirements are met.
79	Sections 100 (6) and (7)
substitute
	(6)	The head of service may temporarily transfer an officer from an administrative unit to exercise the whole, or part, of the functions of an office in another unit if the prescribed requirements are met.
80	Lapsing or discontinuing of appeal
Section 103 (2)
substitute
	(2)	An appeal against a temporary transfer under section 102 must be discontinued if the appellant gives written notice that the appeal has been withdrawn to the person or body that considers the appeal under the temporary transfer appeal procedure mentioned in section 102 (2).
81	Section 105
substitute
105	Meaning of office—div 5.7
In this division:
office means an office other than—
	(a)	the office of head of service; or
	(b)	an office of director-general; or
	(c)	an executive office.
82	Power to engage temporary employee
Section 106 (1)
omit everything before paragraph (a), substitute
	(1)	The head of service may engage a person for temporary employment in an administrative unit if satisfied that—
83	Temporary employment—fixed term less than 12 months
Section 107 (1)
substitute
	(1)	The head of service may engage a person in temporary employment to exercise functions in an administrative unit for a fixed term of less than 12 months.
84	Temporary employment—fixed term not more than 5 years
Section 108 (1)
substitute
	(1)	The head of service may engage a person in temporary employment to exercise functions in an administrative unit for a fixed term of not longer than 5 years.
85	Termination of temporary employment
Section 112 (2)
omit everything before paragraph (a), substitute
	(2)	The head of service may terminate the employment of—
86	Engagement of certain former officers as employees, and contracts with certain former officers, prohibited
Section 114
omit everything before paragraph (a), substitute
The head of service must not, without consulting with the commissioner— 
87	Section 114 (c)
omit
88	Reappointment of retired officers
Sections 117 (1) and (2)
substitute
	(1)	Subject to this section, the head of service may reappoint to an office in an administrative unit a person who has ceased to be an officer.
	(2)	Subsection (2A) applies to a person if—
	(a)	the person has—
	(i)	within the previous year been retired from the service under section 143 as an excess officer without having volunteered to accept retirement on that basis; or
	(ii)	within the previous 2 years been retired as an officer under section 143 as a result of having volunteered to accept retirement as an excess officer; and
Note	Section 144 provides for the date retirement under section 143 takes effect.
	(b)	the person received a payment from the Territory or a territory instrumentality for being retired.
	(2A)	The head of service must not, without consulting the commissioner, reappoint the person to the service.
89	Section 117 (5)
omit
part 9
substitute
section 122
90	Reappointment of unsuccessful election candidates
Section 118 (3)
omit
equivalent office in the administrative unit 
substitute
equivalent office in the same administrative unit
91	Quashing etc of conviction
Section 118A (5)
omit
92	Section 118A (7), definition of appropriate office, paragraph (b)
omit
relevant chief executive or commissioner
substitute
head of service
93	Unattached officers
Section 119 (1)
substitute
	(1)	The head of service may, with the written consent of an officer who holds an office in an administrative unit, declare in writing that the officer will become an unattached officer on a day stated in the declaration.
	(1A)	If the head of service makes a declaration under subsection (1), the office held by the officer becomes vacant on the day stated in the declaration.
94	Definitions—pt 6
Section 139, definition of officer, paragraph (b)
substitute
	(b)	the head of service; or
	(ba)	a director-general; or
95	Section 140 
substitute
140	Power to reduce officer’s classification
The power given by this part to the head of service to reduce an officer’s classification is a power—
	(a)	to assign the officer to an office of a lower classification in an administrative unit; or
	(b)	to declare the officer to be an unattached officer of a lower classification; or 
	(c)	if the officer is an unattached officer—direct that the officer be included in an administrative unit.
96	Redeploy or retire officer from service
Section 143 (1)
omit
relevant chief executive for the office
substitute
head of service
97	Section 143 (2)
substitute
	(2)	The head of service must take reasonable steps to identify a vacant position in an administrative unit that the officer is capable of performing and qualified to fill.
98	Forfeiture of office
Section 221 (5)
omit
99	Reappointment of officers taken to have retired under s 221
Section 222 (5)
omit
100	Definitions—pt 11
Section 223, definition of officer
omit
a chief executive
substitute
the head of service, a director-general
101	Section 241
substitute
241	Returns and information—generally
	(1)	A person must give any returns or other information to the head of service required for the purposes of the exercise of the head of service’s functions under this Act.
	(2)	A person must give any returns or other information to the commissioner required for the purposes of the exercise of the commissioner’s functions under this Act.
102	Engagement of certain former officers and employees prohibited
Section 248A (2)
omit
shall not, without the written consent of the commissioner,
substitute
must not, without consulting the commissioner,
103	Engagement of certain former chief executives and executives prohibited
Section 248B (1) (a)
omit
(Notice or payment if chief executive not re-engaged)
substitute
(Directors-general—notice or payment if not re-engaged)
104	Section 248B (2)
omit
without the commissioner’s written consent
substitute
without consulting the commissioner
105	New section 248C
insert
248C	Engagement of certain former heads of service prohibited
	(1)	This section applies to a person if the person was engaged by a contract under section 23C (Head of service—engagement) and has received, or is entitled to, an amount mentioned in section 23I (2) (Head of service—notice or payment if not re-engaged) in relation to the contract.
	(2)	The Territory must not, without the consulting the commissioner, employ the person within the 3‑month period after the day the contract ends.
106	Dictionary, definition of administering chief executive
omit
107	Dictionary, definition of appeal committee
omit
108	Dictionary, definition of authorised doctor
omit everything before paragraph (a), substitute
authorised doctor means a doctor authorised by the head of service to—
109	Dictionary, definitions of authorised officer, chief executive and direction
omit
110	Dictionary, new definition of director-general
insert
director-general means a person employed to exercise the functions of an office of director-general under—
	(a)	section 28 (Directors-general—engagement); or 
	(b)	section 30 (Directors-general—temporary contracts).
111	Dictionary, definition of eligible public employment
omit
112	Dictionary, definition of employee
substitute
employee means—
	(a)	the head of service; or
	(b)	a director-general; or
	(c)	an executive; or
	(d)	a person engaged under division 5.7 (Temporary employment); or
	(e)	a person who is an employee because of the Public Sector Management (Consequential and Transitional Provisions) Act 1994.
113	Dictionary, new definition of head of service
insert
head of service means the person employed to exercise the functions of the office of head of service under—
	(a)	section 23C (Head of service—engagement); or 
	(b)	section 23J (Head of service—temporary contracts).
114	Dictionary, definition of notified
omit
115	Dictionary, definition of office, paragraph (a)
omit
(Creation and abolition of offices other than offices of chief executives and executive offices)
substitute
(Creation and abolition of non-executive offices)
116	Dictionary, new definitions 
insert
office of head of service means an office created under section 23A.
public sector officer, for division 3.5 (Powers of delegation)—see section 36.
117	Dictionary, definitions of relevant chief executive and review
omit
118	Dictionary, definition of service
substitute
service means the ACT Public Service established under section 12 (1).
119	Dictionary, definition of specified
omit
120	Dictionary, definition of unattached officer
substitute
unattached officer means an officer who does not hold an office.
121	Further amendments, mentions of a chief executive
omit
a chief executive
substitute
the head of service
in
·	section 98 (9)
·	section 101 (2)
·	section 109 (2)
·	section 117 (3)
122	Further amendments, mentions of administering chief executive
omit
administering chief executive
substitute
head of service
in
·	section 54A (1), (3)  and (4)
·	section 75 (b)
·	section 81
123	Further amendments, mentions of chief executive
omit
chief executive
substitute
director-general
in
·	section 28A (5)
·	section 28C
·	section 28D (1)
·	section 30 (1) (a)
·	section 32
·	section 33
·	section 33A (1)
·	section 35
·	section 248A (1) (a)
124	Further amendments, mentions of chief executive
omit
chief executive
substitute
head of service
in
·	division 3.3 heading
·	section 86 (4) (b)
·	section 87 (2) and (3)
·	section 96B (2), (3) and (4)
·	section 101 (2) (2nd mention)
·	section 108 (2)
·	section 112 (4)
·	section 118A (4)
·	section 143 (3) and (4) (a)
·	section 176 (3)
·	section 221
·	section 222 (2), (3) and (4)
125	Further amendment, mention of chief executive of an administrative unit
omit
chief executive of an administrative unit
substitute
head of service
in
·	section 60 (1)
126	Further amendments, mentions of chief executive of the administrative unit
omit
chief executive of the administrative unit
substitute
head of service
in
·	section 90 (1)
·	section 96D (1)
·	section 118 (1) and (3)
127	Further amendments, mentions of chief executives
omit
chief executives
substitute
directors-general
in
·	division 3.4 heading
·	section 28D (1)
·	section 30 heading
·	section 30A heading
·	section 33A 
·	section 34
·	section 248B
128	Further amendment, mentions of chief executive’s
omit
chief executive’s
substitute
director-general’s
in
·	section 28A (5) (a) (i)
129	Further amendments, mentions of Chief Minister
omit
Chief Minister
substitute
head of service
in
·	section 28C (b)
·	section 28D 
·	section 33A (1) and (2)
·	sections 34 and 35
130	Further amendments, mentions of commissioner
omit
commissioner
substitute
head of service
in
·	sections 15 (2) and 16 (2)
·	section 56 (1) (b) and (6)
·	section 58 (4)
·	section 64
·	section 66
·	section 96 (1)
·	section 96A 
·	section 97 (2)
·	section 98 (1) (b) and (8)
·	section 111 (1)
·	section 119 (2)
·	sections 120 and 121 (1)
·	section 139, definition of excess officer
·	section 174 (4) (b), (5) and (6)
·	section 246
·	section 249 (3) (b)
131	Further amendments, mentions of relevant chief executive
omit
relevant chief executive
substitute
head of service
in
·	section 62 (3) and (4)
·	section 65 (6), definition of identified position
·	section 68 (1)
·	section 70 (3) and (4)
·	section 71 (3) and (4)
·	section 71A (3) and (4)
·	section 71B (1) (b), (4) and (5)
·	section 75A (3) and (4)
·	section 80A (1) and (2)
·	section 85 (1)
·	section 86 (4)
·	section 92 (3)
·	section 93 (1) (b))
·	section 100 (5)
·	section 104 (2) (c) and (3)
·	section 107 (2) (b)
·	section 108 (3) (b)
·	section 112 (3)
·	section 118A (2) and (3)
·	section 122 (2)
·	section 143 (4), (7) and (8)
·	section 144 (1)
·	section 146 (1)
·	sections 171 (1) and 172 (2)
·	section 176 (1)
·	section 221 (1)
·	section 222 (1)
·	section 244 (1)
·	section 245 (1)
·	section 249 (2) (b)
132	Further amendment, mention of relevant chief executive’s
omit
relevant chief executive’s
substitute
head of service’s
in
·	section 143 (8) (a)

Endnotes
1	Presentation speech
	Presentation speech made in the Legislative Assembly on	2011.
2	Notification
	Notified under the Legislation Act on	2011.
3	Republications of amended laws
	For the latest republication of amended laws, see www.legislation.act.gov.au.

© Australian Capital Territory 2011