2011

THE LEGISLATIVE ASSEMBLY FOR THE 
AUSTRALIAN CAPITAL TERRITORY

PUBLIC SECTOR MANAGEMENT (ONE ACT PUBLIC SERVICE) AMENDMENT BILL 2011

EXPLANATORY STATEMENT

Presented by
Mr Jon Stanhope MLA
Chief Minister

CONTENTS

OUTLINE	6
DETAIL	7
Clause 1	Name of Act	7
Clause 2	Commencement	7
Clause 3	Legislation amended	7
Clause 4	Legal effect, section 11(2)	7
Clause 5	Division 2.2	7
Section 12ACT Public Service	7
Clause 6	Section 13, Administrative units	8
Clause 7	Machinery of government changesofficers, section 15(1)	8
Clause 8	General functions, section 20(1)(b)	8
Clause 9	Section 20(2)	8
Clause 10	Review of government agencies or functions, section 21(4) and   (5)	8
Clause 11	Review of government agencies or functions, section 21(6)	9
Clause 12	Review of government agencies or functions, new Section 21(8)	9
Clause 13	New division 3.2A, Head of Service	9
23AOffice of head of service	9
23BHead of servicefunctions	9
23CHead of serviceengagement	9
23DHead of service may also be director-general Chief Minister’s administrative unit	10
23EHead of servicecontract variation	10
23FHead of serviceearly termination of contract	10
23GHead of serviceeffect of contract on responsibilities of Ministers	10
23HHead of serviceapplication of merit principle to re-engagements	10
23IHead of servicenotice or payment if not re-engaged	10
23JHead of servicetemporary contract	11
23KHead of servicetermination of temporary contract	11
23LHead of servicevariation of temporary contract	11
23MHead of servicepresentation of contract and contract variations	11
23NHead of servicetransfer or assignment	11
23OHead of servicenotification of head of service’s engagement etc	11
23PHead of servicepaid employment outside the service	12
23QHead of serviceengagement not affected by defects etc	12
Clause 14	Powers of chief executive officers of certain territory     instrumentalities, section 24(2) and (3)	12
Clause 15	Powers of certain statutory office-holders, section 25(2) and (3)	12
Clause 16	Powers relating to certain Calvary Health Care staff, section    26(2) and (3)	12
Clause 17	Directors-general, sections 27, 28 and 28AA	13
27Office of director-general	13
28Directors-generalengagement	13
28AADirectors-generalfunctions	13
28ABDirectors-generalcontract variations	13
Clause 18	Section 28A heading, Directors-generalearly termination of   contract	14
Clause 19	Section 28B heading, Directors-generaleffect of contracts on   responsibilities of Ministers	14
Clause 20	Section 28C heading, Directors-generalapplication of merit   principle to re-engagements	14
Clause 21	Section 28D heading, Directors-generalnotice or payment if   not re-engaged	14
Clause 22	Chief executivesresponsibilities, section 29	14
Clause 23	Chief executivestemporary contracts, section 30(3)	14
Clause 24	Chief executivesvariation of temporary contracts, new section   30A(1)	14
Clause 25	Section 31, Head of service must consult with Ministers about   engagement etc	15
Clause 26	Section 31A heading, Directors-generalpresentation of    contracts and variations of contracts	15
Clause 27	Section 32 heading, Directors-generalengagements not    affected by defects etc	15
Clause 28	Section 33 heading, Directors-generalemployment to perform   duties of multiple positions	15
Clause 29	Section 33B heading, Directors-generaltransfers or     assignments under s 33A not affected by defects etc	15
Clause 30	Section 34 heading, Directors-generalnotification of     engagement etc	15
Clause 31	Section 35 heading, Directors-generalpaid employment    outside the service	15
Clause 32	Section 36, Delegations	16
36Meaning of public sector officerdiv 3.5	16
36ADelegation by head of service	16
36BDelegation by commissioner	16
36CDelegation by directors-general	16
36DDelegations by head of service, commissioner and directors-generalgenerally	16
Clause 33	Equal employment opportunity programs, section 40(1)	17
Clause 34	Equal employment opportunity programs, section 40(1)(c) and   (2)	17
Clause 35	Access and equity programs, section 41(1)	17
Clause 36	Access and equity programs, section 41(1)(c) and (2)	17
Clause 37	Industrial democracy programs, section 42(1)	17
Clause 38	Industrial democracy programs, section 42(1)(c) and (2)	17
Clause 39	Development of programs in autonomous instrumentalities,    section 43(c)	17
Clause 40	Section 54, Legislative Assemblystaff	18
Clause 41	Creation and abolition of executive offices, section 54A(2)	18
Clause 42	Division 4.1A heading, Creation and abolition of non-executive   offices	18
Clause 43	Section 54B, meaning of officediv 4.1A Creation and abolition   of non-executive offices	18
Clause 44	Creation and abolition of offices, section 55(1)	18
Clause 45	Reclassification of offices, section 58(1) and (2)	18
Clause 46	Reclassification of offices in autonomous instrumentalities,    section 59	19
Clause 47	Section 59A, meaning of officediv 4.2 Part-time offices	19
Clause 48	Hours of attendance of certain unattached officers, section    62(2)(a)	19
Clause 49	Application of merit principle, section 65(1)(b) and (c)	19
Clause 50	Application of merit principles, section 65(2)	19
Clause 51	Section 66A, applicationdiv 5.3 Appointment of officers	20
Clause 52	Employment in the service, sections 67(a) and (b)	20
Clause 53	Appointments generally, section 68 (2)(c)	20
Clause 54	Classification of unattached officers, section 69	20
Clause 55	Appointment on probation, section 70(6)	20
Clause 56	Appointment on probationprescribed training office, section   71(6)	21
Clause 57	Appointment on probationteachers, section 71A(6)	21
Clause 58	Appointment without probation, section 71C(1)	22
Clause 59	Appointment without probation, section 71C(2)	22
Clause 60	Notice or payment if executive not re-engaged, section 75A(1)	22
Clause 61	Notice or payment if executive not re-engaged, section    75A(4)(c), note	22
Clause 62	Section 78, executivesnegotiations and execution of contracts	22
Clause 63	Executivestransfer or assignment, section 80A(2)(a)	22
Clause 64	Executivestransfer on assignment, new section 80A(6),    definition of relevant agency manager	23
Clause 65	Definitionsdiv 5.5 Promotion of officers, section 82, definition   of office	23
Clause 66	Section 83, promotion to vacant office	23
Clause 67	Promotion on advice of joint selection committee, section 87(1)	23
Clause 68	Definitionsdiv 5.6 Transfer of officers, section 91, definition of   officer	23
Clause 69	Transfer to vacant office, section 92(2)	24
Clause 70	Simultaneous transfer within administrative unit, section 93(2)	24
Clause 71	Transfer between administrative units, section 94	24
Clause 72	Management initiated transferwithin administrative unit,    sections 95(1) and (2)	24
Clause 73	Management initiated transferbetween administrative units,   section 96(2)	25
Clause 74	Transfer on advice of joint selection committee, section 96B(1)	25
Clause 75	Transfer on advice of joint selection committee, new section    96B(2A), head of service must consult director-general	25
Clause 76	Transfers and promotions to specified offices may be made in   accordance with order of passing examinations, section 97(4)	25
Clause 77	Promotion of officers who complete courses of training for    special positions, section 98(4)	26
Clause 78	Temporary transfer, section 100(1)	26
Clause 79	Temporary transfer, section 100(6) and (7)	26
Clause 80	Lapsing or discontinuing of appeal, section 103(2)	26
Clause 81	Section 105, meaning of officediv 5.7 Temporary employment	26
Clause 82	Power to engage temporary employee, section 106(1)	27
Clause 83	Temporary employmentfixed term less than 12 months,    section 107(1)	27
Clause 84	Temporary employmentfixed term not more than 5 years,    section 108(1)	27
Clause 85	Termination of temporary employment, section 112(2)	27
Clause 86	Engagement of certain former officers as employees, and    contracts with certain former officers, prohibited, section 114	27
Clause 87	Engagement of certain former officers as employees, and    contracts with certain former officers, section 114(c)	28
Clause 88	Reappointment of retired officers, sections 117(1) and (2)	28
Clause 89	Section 117(5), reappointment of retired officers	29
Clause 90	Reappointment of unsuccessful election candidates, section    118(3)	29
Clause 91	Quashing etc of conviction, section 118A(5)	29
Clause 92	Quashing etc of conviction, section 118A(7), definition of    appropriate officer, par (b)	29
Clause 93	Unattached officers, section 119(1)	29
Clause 94	Definitionpt 6 Retirement and redeployment of officers, section   139, definition of officer, paragraph (b)	30
Clause 95	Power to reduce officer’s classification, section 140	30
Clause 96	Redeploy or retire officer from service, section 143(1)	30
Clause 97	Section 143(2), redeploy or retire officer from service	30
Clause 98	Forfeiture of office, section 221(5)	30
Clause 99	Reappointment of officers taken to have retired under s221,    section 221(5)	31
Clause 100	Definitionspt 11 Review and appeal, section 223, definition of   officer	31
Clause 101	Returns and information generally, section 241	31
Clause 102	Engagement of certain former officers and employees    prohibited, section 248A(2)	31
Clause 103	Engagement of certain former chief executives and executives   prohibited, section 248B(1)(a)	32
Clause 104	Engagement of certain former chief executives and executives   prohibited, section 248B(2)	32
Clause 105	Engagement of certain former heads of service prohibited, new   section 248C	32
Clause 106	Dictionary, definition of administering chief executive	32
Clause 107	Dictionary, definition of appeal committee	32
Clause 108	Dictionary, definition of authorised doctor	33
Clause 109	Dictionary, definitions of authorised officer, chief executive and    direction	33
Clause 110	Dictionary, new definition of director-general	33
Clause 111	Dictionary, definition of eligible public employment	33
Clause 112	Dictionary, definition of employee	33
Clause 113	Dictionary, new definition of head of service	33
Clause 114	Dictionary, definition of notified	33
Clause 115	Dictionary, definition of office, paragraph (a)	34
Clause 116	Dictionary, new definitions of office of head of service and public   sector officer	34
Clause 117	Dictionary, definition of relevant chief executive and review	34
Clause 118	Dictionary, definition of service	34
Clause 119	Dictionary, definition of specified	34
Clause 120	Dictionary, definition of unattached officer	34
Clause 121	Further amendments, replace mentions of a chief executive with   the head of service	34
Clause 122	Further amendments, replace mentions of administering chief   executive with head of service	35
Clause 123	Further amendments, replace mentions of chief executive with   director-general	35
Clause 124	Further amendments, replace mentions of chief executive with   head of service	35
Clause 125	Further amendments, replace mentions of chief executive of an   administrative unit with head of service	35
Clause 126	Further amendments, replace mentions of chief executive of the   administrative unit with head of service	35
Clause 127	Further amendments, replace mentions of chief executives with   directors-general	35
Clause 128	Further amendments, replace mentions of chief executive’s with   director-general’s	36
Clause 129	Further amendments, replace mentions of Chief Minister with   head of service	36
Clause 130	Further amendments, mentions of commissioner with head of   service	36
Clause 131	Further amendments, mentions of relevant chief executive with   head of service	36
Clause 132	Further amendments, mentions of relevant chief executive’s with   head of service’s	36

OUTLINE

The ‘Governing the City State: One ACT Government, One ACT Public Service’ report (the Report) by Dr Allan Hawke AC identifies a need for increased focus on whole-of-Government priorities and improved co-ordination across the work of individual agencies to better serve the interests of the ACT community.

To support this goal, the Report recommends a structure for the ACT Public Service (ACTPS) where ‘all existing Administrative Units in ACTPS be abolished and replaced by a single, unified ACTPS organisation ... reporting to a single Chief Executive who is Head of the ACTPS’ (p4).  Further, the Report states that ‘(u)nder the recommended structure, there would be a single agency responsible for supporting the government of the day across a number of service delivery lines’ (p74).  The Government has agreed to changes to the Public Sector Management Act 1994 to give effect to these recommendations.

The purpose of this bill is to reflect the single entity structure envisaged by the Report in the Public Sector Management Act 1994 (PSM Act), being the legislation that governs administrative structures and the employment framework for the ACTPS.

In summary, the major amendments propose:

•	the establishment of a single ACTPS entity comprised by administrative units (directorates);

•	the creation of a role called ‘the head of service’ with overarching responsibility for whole-of-Government matters.  The head of service would also be responsible for employment matters at all levels of the ACTPS and for organisational structures instead of chief executives/directors-general;

•	reflective of the whole-of-Government focus, recasting ‘chief executives’ as ‘directors-general’ responsible for their respective directorates’ performance and contribution to the single entity.  Directors-General will still manage their respective directorates at the direction of their relevant portfolio Minister, but there will be additional accountability lines from each director-general to the head of service and the Chief Minister on whole-of-Government matters;

•	a range of consequential amendments to the PSM Act to reflect the head of service’s responsibility for employment and the new offices in the single entity structure. 

The effect of the amendments would be to create a new unified ACTPS that operates with increased focus on how the ACTPS as a whole is performing, not just individual agency outcomes.  The Administrative Arrangements will still allocate functions and legislation responsibility to directorates.  However, the new structure emphasises that the major indicator for performance is to be the extent that directorate activities and results advance the whole-of-Government agenda.

The bill also makes minor consequential amendments arising from the Public Sector Management Amendment Act 2011, which commenced on 18 April 2011.

DETAIL

Clause 1		Name of Act

This is a technical clause stating the name of the Act as the Public Sector Management (One ACT Public Service) Amendment Act 2011.

Clause 2		Commencement

This is a technical clause stating that the Act commences on 1 July 2011.

Clause 3		Legislation amended

This is a technical clause stating the Act being amended as the Public Sector Management Act 1994 (the Act).

Clause 4		Legal effect, section 11(2)

This clause replaces a reference to part 9 which formerly dealt with discipline matters, with references to misconduct and termination of employment provisions.  

As part of a process to bring greater alignment between the Act, the Public Sector Management Standards 2006 (the Standards) and industrial instruments (namely Enterprise Agreements), the Public Sector Management Amendment Act 2011 (the Amending Act) omitted part 9 (which dealt with discipline) on the basis that its content is to be comprehensively covered in industrial instruments.  These provisions commenced on 18 April 2011. 

The replacement reference in section 11(2) to ‘misconduct procedures that apply to a public employee’ reflects this change.  

The additional reference to section 122 (Termination of employment) reflects the possibility that contraventions of misconduct procedures may result in termination of employment.     

Clause 5		Division 2.2

This clause provides for the establishment of a single entity called the ACT Public Service.

There is a change to the heading for division 2.2.  The former heading was Constitution of the service.  The new heading ‘ACT Public Service’ reflects that division 2.2 is to house the provisions that give effect to the new single entity structure for the ACT Public Service envisaged by the Report.

Section 12ACT Public Service

Proposed section 12 establishes the ACT Public Service, comprised of the administrative units established by the Chief Minister.  This is a significant change to how the service has been characterised in the past, which is by reference to the people engaged in the service.

The reason for the revised approach to the constitution of the service is part of a suite of changes in this bill to clearly convey that the administrative units (to be known as directorates) are to be treated and regard themselves as part of a larger ACT Public Service.

The people in the service listed under section 12(3) are to be referred to as members of the ACT Public Service.  The list has been updated to reflect the new head of service position and renamed directors-general.  The Territory will remain their employer.

Clause 6		Section 13, Administrative units

This clause retains the power of the Chief Minister to establish administrative units under a notifiable instrument, but indicates that the office of director-general to be in charge of that unit will be automatically created with the establishment of the unit by operation of proposed section 27(1) (see clause 17).

Clause 7		Machinery of government changesofficers, section 15(1)

This clause reallocates the power to transfer officers from an abolished administrative unit to another administrative unit from the Chief Minister or commissioner to the head of service.  This reflects the new head of service role to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

Clause 8	     General functions, section 20(1)(b)

This clause omits the function of the commissioner to ‘implement administrative rearrangements at the request of the Chief Minister’.  This is to be done by the head of service in the new single entity structure.  

Clause 9		Section 20(2)

This clause omits the commissioner’s power to exercise chief executive powers.   This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13). 

Clause 10	Review of government agencies or functions, section 21(4) and 		(5)

This clause requires the commissioner to notify the head of service and one of a director-general, chief executive officer of a territory instrumentality or a statutory office-holder (defined as a ‘relevant agency manager’) where an administrative unit, territory instrumentality or statutory office is being reviewed.  This reflects the new head of service role having overarching responsibility for the service.

Clause 11	Review of government agencies or functions, section 21(6)

This clause allows the relevant director-general, chief executive officer of a territory instrumentality or a statutory office-holder (defined as a ‘relevant agency manager’), to disagree with any recommendations arising from a commissioner review.

There is also a requirement for the relevant director-general, chief executive officer of a territory instrumentality or a statutory office-holder to notify the relevant portfolio Minister and the Chief Minister if the commissioner’s recommendations are not implemented within a reasonable time.  The reasons for non-implementation must also be provided to the commissioner and the head of service.   

Clause 12	Review of government agencies or functions, new Section 21(8)

This clause inserts a new term, ‘relevant agency manager’ to refer to one of a director-general, chief executive officer of a territory instrumentality or a statutory office-holder, as appropriate.

Clause 13	New division 3.2A, Head of Service

This clause inserts a new division into the Act that deals with a range of matters relating to the new head of service role, including its establishment, main functions and various employment aspects.

23AOffice of head of service

Proposed section 23A creates the new head of service role to be in charge of the service.

23BHead of servicefunctions

Proposed section 23B lists functions for the head of service.  The list reflects the position’s responsibility for whole-of-Government matters, including employment matters at all levels of the service.  It is envisaged that the head of service will focus on Government priorities, by ensuring that directorate activities fulfil and/or are consistent with those priorities.

There is also a specific function related to ‘critical or potentially critical’ issues.  This acknowledges that there may be some single directorate matters that have whole-of-Government impact and therefore head of service involvement is appropriate.  

23CHead of serviceengagement

Proposed section 23C gives the Chief Minister responsibility for engaging the head of service.  Similar to provisions applying to director-generals (and previous chief executives), the head of service will be engaged under contract for a period not exceeding 5 years. 

23DHead of service may also be director-general Chief Minister’s administrative unit

Proposed section 23D allows for the position of head of service and the position of director-general in the Chief Minister’s Directorate to be performed by one person.  Where this occurs, the person’s employment will be governed by the contract governing the head of service, and no separate or further director-general contract will have effect.

23EHead of servicecontract variation

Proposed section 23E provides for variation of the contract between the Chief Minister and head of service.  Similar to provisions applying to director-generals (and previous chief executives), the section limits the period of time the contract can be extended, and the remuneration increase that can be provided under the variation.

23FHead of serviceearly termination of contract

Proposed section 23F allows for the head of service contract to be terminated early in certain circumstances.  Similar to provisions applying to director-generals (and previous chief executives), the grounds for termination must be stated if the contract so provides, those grounds cannot include interpersonal reasons, termination benefits must be prescribed and there are conditions on termination for invalidity.

23GHead of serviceeffect of contract on responsibilities of Ministers

Proposed section 23G expressly provides that the head of service contract does not limit the relevant Minister’s responsibility for a portfolio.  Similar to provisions applying to director-generals (and previous chief executives), this is a confirmation of the Executive’s primacy in directing Government policy.

23HHead of serviceapplication of merit principle to re-engagements

Proposed section 23H outlines how merit will apply where the head of service is to be re-engaged.  Similar to provisions applying to director-generals (and previous chief executives), a further merit selection process is not required.

23IHead of servicenotice or payment if not re-engaged

Proposed section 23I prescribes notice conditions where the head of service is not re-engaged.  Similar to provisions applying to director-generals (and previous chief executives), a minimum 3 months’ notice must be given or else a termination benefit will be payable.

A note indicates that there are limitations on when a head of service who has received a payment under this provision can be re-engaged (see clause 105).

23JHead of servicetemporary contract

Proposed section 23J sets out conditions for an acting head of service.  Similar to provisions applying to director-generals (and previous chief executives), the person must be engaged under contract for a period not exceeding 2 years.

There is also express provision for a director-general to act as the head of service, and for his or her contract to be varied when this occurs (rather than execution of a new contract).

23KHead of servicetermination of temporary contract

Proposed section 23K allows for early termination of a temporary head of service contract.  Similar to provisions applying to director-generals (and previous chief executives), either party can terminate and no compensation will be payable in these circumstances. 

23LHead of servicevariation of temporary contract

Proposed section 23L allows a temporary head of service contract to be varied.  Similar to provisions applying to director-generals (and previous chief executives), the variation cannot extend the acting head of service term beyond 2 years.

23MHead of servicepresentation of contract and contract variations

Proposed section 23M specifies the Chief Minister must present head of service contracts to the Assembly.  Similar to provisions applying to director-generals (and previous chief executives), presentation of long term and temporary contracts must occur within 6 sitting days.

23NHead of servicetransfer or assignment

Proposed section 23N allows the Chief Minister to transfer or assign the head of service to a director-general position or to perform other duties.  Similar to provisions applying to director-generals (and previous chief executives), the Chief Minister must consult and take the head of service’s views into account, and the transfer or assignment does not affect remuneration, conditions for termination or the contract term.

23OHead of servicenotification of head of service’s engagement etc

Proposed section 23O prescribes when gazettal must occur in relation to the head of service’s employment.  Similar to provisions applying to director-generals (and previous chief executives), engagement, termination, end of engagement, transfer and assignment must be notified in the gazette.

23PHead of servicepaid employment outside the service

Proposed section 23P restricts the head of service from performing other paid employment.  Similar to provisions applying to director-generals (and previous chief executives), any alternative paid employment will have to be approved (by the Chief Minister for the head of service).

23QHead of serviceengagement not affected by defects etc

Proposed section 23Q states that defects in contracts will not affect the validity of an engagement or transfer of the head of service.  Similar to provisions applying to director-generals (and previous chief executives), this applies to temporary and long term contracts as well as transfers and assignments.

Clause 14	Powers of chief executive officers of certain territory 				instrumentalities, section 24(2) and (3)

This clause provides that the chief executive officer of a territory instrumentality will have the powers of the head of service in respect of his or her staff for employment matters.  No other functions of the head of service will be exercisable by the chief executive officer as they relate to whole-of-Government matters, and may be inconsistent with the responsibilities of chief executive officers prescribed in establishing legislation.

This clause also provides director-general powers for the chief executive officer of a territory instrumentality.

Clause 15	Powers of certain statutory office-holders, section 25(2) and (3)

This clause provides that certain statutory office-holders will have the powers of the head of service in respect of his or her staff for employment matters.  No other functions of the head of service will be exercisable by the statutory office-holder as they relate to whole-of-Government matters, and may be inconsistent with the responsibilities of chief executive officers prescribed in establishing legislation.

This clause also provides director-general powers for certain statutory office-holders.

For either of the above to apply, the Chief Minister will be required to make a declaration.

Clause 16	Powers relating to certain Calvary Health Care staff, section 			26(2) and (3)

This clause provides that the chief executive officer, Calvary will have the powers of the head of service in respect of employment of staff.  No other functions of the head of service will be exercisable by the chief executive officer, Calvary as they relate to whole-of-Government matters, and may be inconsistent with the responsibilities of chief executive officers prescribed in establishing legislation.

This clause also provides director-general powers for the chief executive officer, Calvary.

Clause 17	Directors-general, sections 27, 28 and 28AA 

This clause (and each clause until clause 30) amends Division 3.4 to convert chief executives to directors-general.  Many amendments involve updating references to reflect the new position name, but there are also changes to the office’s establishment, main functions and various employment aspects.

27Office of director-general

Proposed section 27 provides that an office of director-general for an administrative unit is established when the administrative unit is established.  This is a change to previous provisions, where the office had to be created by the Chief Minister as part of the administrative arrangements.

Consistent with the office of a director-general being self-executing, the office will cease to exist when an administrative unit is abolished.

28Directors-generalengagement

Proposed section 28 gives the head of service responsibility for engaging directors-general, unlike previously where the Chief Minister engaged chief executives.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

There is also a signpost note to proposed section 23D (see clause 13), which allows the director-general, Chief Minister’s Directorate, to also fill the office of the head of service.

In all other respects, proposed section 28 is similar to previous provisions applying to chief executives, requiring that a director-general will be engaged under contract for a period not exceeding 5 years. 

28AADirectors-generalfunctions

Proposed section 28AA prescribes functions for directors-general that add to the list which applied to chief executives.  Directors-general will remain responsible for managing their respective administrative units under portfolio Ministers.  However, there is an additional emphasis on participation in whole-of-Government initiatives at the direction of the head of service, consistent with the new single entity structure.

28ABDirectors-generalcontract variations

Proposed section 28AB provides for variation of the contract between the head of service and a director-general.  In all other respects, proposed section 28AB is similar to previous provisions applying to chief executives, as the section limits the period of time the contract can be extended, and the remuneration increase that can be provided under the variation.

Clause 18	Section 28A heading, Directors-generalearly termination of 		contract

This clause amends the heading to section 28A to reflect the position change from ‘chief executive’ to ‘director-general’.

Clause 19	Section 28B heading, Directors-generaleffect of contracts on 		responsibilities of Ministers

This clause amends the heading to section 28B to reflect the position change from ‘chief executive’ to ‘director-general’.

Clause 20	Section 28C heading, Directors-generalapplication of merit 		principle to re-engagements

This clause amends the heading to section 28C to reflect the position change from ‘chief executive’ to ‘director-general’.

Clause 21	Section 28D heading, Directors-generalnotice or payment if 		not re-engaged

This clause amends the heading to section 28D to reflect the position change from ‘chief executive’ to ‘director-general’.

Clause 22	Chief executivesresponsibilities, section 29

This clause omits section 29 as it is to be replaced by the new director-general functions in proposed section 28AA (see clause 17).

Clause 23	Chief executivestemporary contracts, section 30(3)

This clause gives the head of service responsibility for engaging directors-general on temporary contracts, unlike previously where the Chief Minister engaged chief executives on temporary contracts.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 30 is similar to previous provisions applying to chief executives, including that the person must be engaged under contract for a period not exceeding 2 years.

Clause 24	Chief executivesvariation of temporary contracts, new section 		30A(1)

This clause provides for variation of the contract between the head of service and a director-general.  In all other respects, proposed section 30A is similar to previous provisions applying to chief executives, including the variation cannot extend the acting director-general term beyond 2 years.

Clause 25	Section 31, Head of service must consult with Ministers about 		engagement etc

This clause requires the head of service to have regard to the advice of the Chief Minister and the relevant portfolio Minister before engaging a director-general on a long term or temporary contract.  This is consistent with previous Act requirements, where the Chief Minister was to have regard to the advice of the relevant portfolio Minister before engaging chief executives.

Clause 26	Section 31A heading, Directors-generalpresentation of 			contracts and variations of contracts

This clause amends the heading to section 31A to reflect the position change from ‘chief executive’ to ‘director-general’.

Clause 27	Section 32 heading, Directors-generalengagements not 			affected by defects etc

This clause amends the heading to section 32 to reflect the position change from ‘chief executive’ to ‘director-general’.

Clause 28	Section 33 heading, Directors-generalemployment to perform 		duties of multiple positions

This clause amends the heading to section 33 to reflect the position change from ‘chief executive’ to ‘director-general’.

Clause 29	Section 33B heading, Directors-generaltransfers or 				assignments under s 33A not affected by defects etc

This clause amends the heading to section 33B to reflect the position change from ‘chief executive’ to ‘director-general’.

Clause 30	Section 34 heading, Directors-generalnotification of 				engagement etc

This clause amends the heading to section 34 to reflect the position change from ‘chief executive’ to ‘director-general’.

Clause 31	Section 35 heading, Directors-generalpaid employment 			outside the service

This clause amends the heading to section 35 to reflect the position change from ‘chief executive’ to ‘director-general’.

Clause 32	
Section 36, Delegations

This clause sets out delegation rules for the new head of service role, the new offices of directors-general and the commissioner.  The new rules are similar to previous delegation provisions with changes to reflect the place of each role in the new single entity structure.

36Meaning of public sector officerdiv 3.5

Proposed section 36 puts the definition of ‘public sector officer’ in a stand-alone provision.  The definition is otherwise unchanged.

36ADelegation by head of service

Proposed section 36A allows the head of service to delegate any of his or her functions derived under any law to another public sector officer.  The provision also allows the head of service to sub-delegate to another public sector officer any function derived from a law other than the Act.

36BDelegation by commissioner

Proposed section 36B allows the commissioner to delegate any of his or her functions derived under any law to another public sector officer.  The provision also allows the commissioner to sub-delegate to another public sector officer any function derived from a law other than the Act.

36CDelegation by directors-general

Proposed section 36C allows a director-general to delegate any of his or her functions derived under any law to another public sector officer.  The provision also allows a director-general to sub-delegate to another public sector officer any power related to the management of employment matters delegated by the head of service, as well as any function delegated by the head of service under the management standards or derived from a law other than the Act.

Allowing directors-general to subdelegate a function under the Act is a departure from previous delegation provisions applying to chief executives.  However, it is anticipated that powers relating to the appointment and employment of staff will be delegated to directors-general, and will need to be subdelegated to other staff, to allow for efficient management of directorates.

36DDelegations by head of service, commissioner and directors-generalgenerally

Proposed section 36D provides for delegation rules that apply equally to the head of service, directors-general and the commissioner, each defined as a possible ‘delegator’ in the provision.

Apart from the inclusion of the head of service in the delegation provisions, proposed section 30A is similar to previous provisions applying to chief executive and commissioner delegation.  This includes limits on delegations to a chief executive officer of a territory instrumentality or a statutory office-holders as appropriate (defined as a ‘non-service delegate’ in the provision), the ability to direct how a delegation is to be exercised and how delegation to anyone occupying a particular office is to be treated.

Clause 33	Equal employment opportunity programs, section 40(1)

This clause updates section 40 to give the provision currency.

Clause 34	Equal employment opportunity programs, section 40(1)(c) and 		(2)

This clause requires the commissioner to give a copy of any written statement to be given to the head of service as well as the Chief Minister, and inserts a reference to the additional requirement in proposed section 40(2).  This addition reflects the new head of service role having overarching responsibility for the service.

Clause 35	Access and equity programs, section 41(1)

This clause updates section 41 to give the provision currency.

Clause 36	Access and equity programs, section 41(1)(c) and (2)

This clause requires the commissioner to give a copy of any written statement to be given to the head of service as well as the Chief Minister, and inserts a reference to the additional requirement in proposed section 41(2).  This addition reflects the new head of service role having overarching responsibility for the service.

Clause 37	Industrial democracy programs, section 42(1)

This clause updates section 42 to give the provision currency.

Clause 38	Industrial democracy programs, section 42(1)(c) and (2)

This clause requires the commissioner to give a copy of any written statement to be given to the head of service as well as the Chief Minister, and inserts a reference to the additional requirement in proposed section 42(2).  This addition reflects the new head of service role having overarching responsibility for the service.

Clause 39	Development of programs in autonomous instrumentalities, 			section 43(c)

This clause adds a reference to the head of service to program provisions as they apply to autonomous instrumentalities (ie the Auditor-General’s Office and the Director of Public Prosecutions).  This means that a statement setting out various commissioner programs must be given to the Chief Minister, the head of service and the relevant portfolio Minister.  This addition reflects the new head of service role having overarching responsibility for the service.

Clause 40	Section 54, Legislative Assemblystaff

This clause provides that the clerk of the Legislative Assembly will have the powers of the head of service in respect of employment of staff, by reference to section 25(3) (see clause 15).  No other functions of the head of service will be exercisable by the clerk as they relate to whole-of-Government matters, and may be inconsistent with the responsibilities of chief executive officers prescribed in establishing legislation.

This clause also provides director-general powers for the clerk.

Clause 41	Creation and abolition of executive offices, section 54A(2)

This clause omits a prohibition on the administering chief executive abolishing an executive office in an administrative unit where he or she is not the chief executive in charge.  As the head of service is to create and abolish executive offices, consistent with the new head of service role as having responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13), the provision is redundant.

Clause 42	Division 4.1A heading, Creation and abolition of non-executive 		offices

This clause amends the heading to division 4.1A to update references to reflect the new positions in the new single entity structure.  Accordingly, in referring to ‘non-executive offices’, the division covers the creation and abolition of offices other than the head of service, offices of directors-general and executive offices, which are covered elsewhere in the Act.

Clause 43	Section 54B, meaning of officediv 4.1A Creation and abolition 		of non-executive offices 

This clause amends the definition of ‘office’ for division 4.1A to update references to reflect the new positions in the new single entity structure.  Accordingly, in defining ‘office’, the term covers offices other than the head of service, offices of directors-general and executive offices.

Clause 44	Creation and abolition of offices, section 55(1)

This clause reallocates the role of creating and abolishing offices within an administrative unit from chief executives to the head of the service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

Clause 45	Reclassification of offices, section 58(1) and (2)

This clause reallocates the role of reclassifying offices from chief executives and the commissioner to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 58 is similar to previous provisions applying to reclassification of non-executive offices, including that the office must be reclassified to an approved classification under the Act and that an office may become vacant and any person holding the office may become unattached where the salary payable alters as a result of the reclassification.

Clause 46	Reclassification of offices in autonomous instrumentalities, 			section 59

This clause omits a prohibition on the commissioner reclassifying non-executive offices in an autonomous instrumentality.  As the head of service is to have this power, consistent with the new head of service role as having responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13), the provision is redundant.

Clause 47	Section 59A, meaning of officediv 4.2 Part-time offices

This clause amends the definition of ‘office’ for division 4.2 to update references to reflect the new positions in the new single entity structure.  Accordingly, in defining ‘office’, the term covers offices other than the head of service, offices of directors-general and executive offices.

Clause 48	Hours of attendance of certain unattached officers, section 			62(2)(a)

This clause replaces a reference to section 192 or section 193 which formerly dealt with reappointment as an unattached officer following misconduct proceedings.

As part of a process to bring greater alignment between the Act, the Standards and industrial instruments (namely Enterprise Agreements), the Amending Act omitted part 9 (which dealt with discipline) on the basis that its content is to be comprehensively covered in industrial instruments.  These provisions commenced on 18 April 2011. 

The replacement reference in section 62(2)(a) to section 119 reflects this change.  

Clause 49	Application of merit principle, section 65(1)(b) and (c)

This clause amends section 65(1) to update references to reflect the new positions in the new single entity structure.  Accordingly, the merit principle will apply to the engagement of the head of service, a director general or an executive on a long-term contract or temporary contract exceeding 9 months.

Clause 50	Application of merit principles, section 65(2)

This clause reallocates responsibility for applying the merit principle from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 65 is similar to previous provisions applying to application of the merit principle.

Clause 51	Section 66A, applicationdiv 5.3 Appointment of officers

This clause amends section 66A to update references to reflect the new positions in the new single entity structure.  Accordingly, division 5.3 dealing with appointments will not apply to the engagement of the head of service, directors-general or executives, whose appointment processes are covered elsewhere in the Act.

Clause 52	Employment in the service, sections 67(a) and (b)

This clause amends section 67 to update references to reflect the new positions in the new single entity structure.  Accordingly, in listing the various ways that a person can be appointed to the service, proposed section 67 will also include engagement as the head of service or as a director-general.

Clause 53	Appointments generally, section 68 (2)(c)

This clause reallocates responsibility for making officer appointments from chief executives and the commissioner to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 68 is similar to previous provisions applying to the appointment of officers.

Clause 54	Classification of unattached officers, section 69

This clause reallocates responsibility for appointment of unattached officers from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 69 is similar to previous provisions applying to classification of unattached officers.

Clause 55	Appointment on probation, section 70(6)

This clause reallocates the power to appoint a person to the service within 12 months of having his or her employment terminated while on probation from the commissioner to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

There is a requirement for the head of service to consult with the commissioner before exercising this power.  The reason for including a role for the commissioner in this context is that the head of service will have been responsible for making the original decision to end the appointment during probation, as well as deciding to reappoint the person despite the termination.  Accordingly, the commissioner is to ensure that the decision is appropriate in the circumstances, including where one or both of those decisions of the head of service has been made by a delegate.

In all other respects, proposed section 70 is similar to previous provisions applying to appointment on probation.

Clause 56	Appointment on probationprescribed training office, section 		71(6)

This clause reallocates the power to appoint a person to the service within 12 months of having his or her employment terminated while on probation as an officer in a prescribed training office, from the commissioner to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

There is a requirement for the head of service to consult with the commissioner before exercising this power.  The reason for including a role for the commissioner in this context is that the head of service will have been responsible for making the original decision to end the appointment during probation, as well as deciding to reappoint the person despite the termination.  Accordingly, the commissioner is to ensure that the decision is appropriate in the circumstances, including where one or both of those decisions of the head of service has been made by a delegate.

In all other respects, proposed section 71 is similar to previous provisions applying to appointment on probation for officers in a prescribed training office.

Clause 57	Appointment on probationteachers, section 71A(6)

This clause reallocates the power to appoint a person as a teacher within 12 months of being terminated while on probation as a teacher, from the commissioner to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

There is a requirement for the head of service to consult with the commissioner before exercising this power.  The reason for including a role for the commissioner in this context is that the head of service will have been responsible for making the original decision to end the appointment during probation, as well as deciding to reappoint the person despite the termination.  Accordingly, the commissioner is to ensure that the decision is appropriate in the circumstances, including where one or both of those decisions of the head of service has been made by a delegate.

In all other respects, proposed section 71A is similar to previous provisions applying to appointment on probation for teachers.

Clause 58	
Appointment without probation, section 71C(1)

This clause reallocates responsibility for appointment without probation from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 71C(1) is similar to previous provisions allowing appointment without probation.

Clause 59	Appointment without probation, section 71C(2)

This clause specifies that the head of service must be satisfied of certain matters before making a decision under proposed section 71C(1).  These conditions are the same as those under previous provisions that applied for the relevant chief executive when deciding to appoint without probation.

Clause 60	Notice or payment if executive not re-engaged, section 75A(1)

This clause applies section 75A to a decision of the head of service not to re-engage an executive, which was a power that was previously exercised by chief executives.  The amendment reflects the new head of service role to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 75A is similar to previous provisions applying to notice of payment where an executive is not re-engaged.

Clause 61	Notice or payment if executive not re-engaged, section 			75A(4)(c), note

This is a consequential amendment required because of the proposed change to section 248B(2) (see clause 104).

Clause 62	Section 78, executivesnegotiations and execution of contracts

This clause reallocates responsibility for signature of contracts with executives from various chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In other respects, proposed section 78 is similar to previous provisions applying to the negotiation and execution of contracts with executives.

Clause 63	Executivestransfer or assignment, section 80A(2)(a)

This clause requires the head of service to consult with relevant directors-general where an executive is being transferred or assigned from one administrative unit to another.  The amendment reflects the new head of service role to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).  However, there is also a need for directors-general to be included in such decisions to facilitate the efficient management of individual directorates.

Clause 64	Executivestransfer on assignment, new section 80A(6), 			definition of relevant agency manager 

This clause inserts a new definition of ‘relevant agency manager’ into proposed section 80A to refer to one of a director-general, chief executive officer of a territory instrumentality or a statutory office-holder, as appropriate.

Clause 65	Definitionsdiv 5.5 Promotion of officers, section 82, definition 		of office

This clause amends the definition of ‘office’ for division 5.5 to update references to reflect the new positions in the new single entity structure.  Accordingly, in defining ‘office’, the term covers offices other than the head of service, offices of directors-general and executive offices.

Clause 66	Section 83, promotion to vacant office

This clause reallocates the power to promote an officer to a vacant office from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 83 is similar to previous provisions applying to promotion to a vacant office.

Clause 67	Promotion on advice of joint selection committee, section 87(1)

This clause reallocates the power to promote an officer on the advice of a joint selection committee from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 87 is similar to previous provisions applying to promotion on the advice of a joint selection committee.

Clause 68	Definitionsdiv 5.6 Transfer of officers, section 91, definition of 		officer

This clause amends the definition of ‘office’ for division 5.6 to update references to reflect the new positions in the new single entity structure.  Accordingly, in defining ‘office’, the term covers offices other than the head of service, offices of directors-general and executive offices.

Clause 69	
Transfer to vacant office, section 92(2)

This clause reallocates the power to transfer an officer from within an administrative unit to fill a vacant office where 2 or more officers have applied for a transfer to that office from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).  There is a requirement for the head of service to consult with the relevant director-general when exercising this power to facilitate the efficient management of individual directorates.

In all other respects, proposed section 92 is similar to previous provisions applying to transfer to a vacant office.

Clause 70	Simultaneous transfer within administrative unit, section 93(2)

This clause reallocates the power to transfer 2 officers simultaneously between offices within the same administrative unit from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).  There is a requirement for the head of service to consult with the relevant director-general when exercising this power to facilitate the efficient management of individual directorates.

In all other respects, proposed section 93 is similar to previous provisions applying to simultaneous transfer within an administrative unit.

Clause 71	Transfer between administrative units, section 94

This clause reallocates the power to transfer an officer from one administrative unit to another from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).  There is a requirement for the head of service to consult with the relevant directors-general when exercising this power to facilitate the efficient management of individual directorates.

In all other respects, proposed section 94 is similar to previous provisions applying to transfer between administrative units.

Clause 72	Management initiated transferwithin administrative unit, 			sections 95(1) and (2)

This clause reallocates the power to approve a management-initiated transfer within the same administrative unit from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).  There is a requirement for the head of service to consult with the relevant director-general when exercising this power to facilitate the efficient management of individual directorates.

In all other respects, proposed section 95 is similar to previous provisions applying to management initiated transfers within an administrative unit.

Clause 73	Management initiated transferbetween administrative units, 		section 96(2)

This clause reallocates the power to approve a management initiated transfer from one administrative unit to another from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).  There is a requirement for the head of service to consult with the officer concerned and the relevant directors-general when exercising this power to facilitate the efficient management of individual directorates.

In all other respects, proposed section 96 is similar to previous provisions applying to management initiated transfers between administrative units.

Clause 74	Transfer on advice of joint selection committee, section 96B(1)

This clause reallocates the power to transfer an officer on the advice of a joint selection committee from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 96B(1) is similar to previous provisions applying to transfer on the advice of a joint selection committee.

Clause 75	Transfer on advice of joint selection committee, new section 			96B(2A), head of service must consult director-general

This clause requires the head of service to consult with relevant director-general where there is a recommendation from a joint selection committee regarding a transfer.  The amendment reflects the new head of service role to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).  However, there is also a need for relevant directors-general to be included in such decisions to facilitate the efficient management of individual directorates.

Clause 76	Transfers and promotions to specified offices may be made in 		accordance with order of passing examinations, section 97(4)

This clause reallocates the power to transfer or promote an officer after he or she has passed an exam from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 97 is similar to previous provisions applying to transfer or promotion after passing examinations.

Clause 77	Promotion of officers who complete courses of training for 			special positions, section 98(4)

This clause reallocates the power to promote an officer once he or she has completed training from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 98 is similar to previous provisions applying to promotion on the completion of training.

Clause 78	Temporary transfer, section 100(1)

This clause reallocates the power to approve a temporary transfer from an administrative unit from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13). 

In all other respects, proposed section 100(1) is similar to previous provisions applying to temporary transfer.

Clause 79	Temporary transfer, section 100(6) and (7)

This clause reallocates the power to approve a temporary transfer to an administrative unit from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 100 is similar to previous provisions applying to temporary transfer.

Clause 80	Lapsing or discontinuing of appeal, section 103(2)

This clause removes the ability of a relevant chief executive to discontinue an appeal against a temporary transfer.  The new office of director-general is not to have this power.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In other respects, proposed section 103 is similar to previous provisions applying to lapsing or discontinuing appeals. 

Clause 81	Section 105, meaning of officediv 5.7 Temporary employment

This clause amends the definition of ‘office’ for division 5.7 to update references to reflect the new positions in the new single entity structure.  Accordingly, in defining ‘office’, the term covers offices other than the head of service, offices of directors-general and executive offices.

Clause 82	Power to engage temporary employee, section 106(1)

This clause reallocates the power to engage a temporary employee from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 106 is similar to previous provisions applying to temporary employees.

Clause 83	Temporary employmentfixed term less than 12 months, 			section 107(1)

This clause reallocates the power to engage a temporary employee for a fixed term of less than 12 months from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 107 is similar to previous provisions applying to engagement of temporary employees on fixed terms of less than 12 months.

Clause 84	Temporary employmentfixed term not more than 5 years, 			section 108(1)

This clause reallocates the power to engage a temporary employee for a fixed period of not more than 5 years from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 108 is similar to previous provisions applying to engagement of temporary employees on fixed terms of no more than 5 years.

Clause 85	Termination of temporary employment, section 112(2)

This clause reallocates the power to terminate temporary employment from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 112 is similar to previous provisions applying to termination of temporary employment.

Clause 86	Engagement of certain former officers as employees, and 			contracts with certain former officers, prohibited, section 114

This clause places a prohibition on the head of service from re-engaging certain former officers except in certain circumstances.  This prohibition was formerly on chief executives.  The amendment reflects the new head of service role to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

There is a requirement for the head of service not to re-engage certain former officers without consulting with the commissioner (which is different from the previous requirement to obtain the commissioner’s consent).  The reason for including a role for the commissioner in this context is that the head of service will have been responsible for making the original decision to retire the officer, as well as deciding to re-engage the person.  Accordingly, the commissioner is to ensure that the decision is appropriate in the circumstances, including where one or both of those decisions of the head of service has been made by a delegate.

In other respects, proposed section 114 is similar to previous provisions applying to engagement of certain former officers.

Clause 87	Engagement of certain former officers as employees, and 			contracts with certain former officers, section 114(c)

This clause updates the provision to omit an obsolete reference.

Clause 88	Reappointment of retired officers, sections 117(1) and (2)

This clause reallocates the power to reappoint a retired officer from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

The effect of proposed section 117(2) and proposed section 117(2A) is to place a prohibition on the head of service from re-appointing certain retired officers except in certain circumstances.  The officers that are the subject of the limited prohibition are listed in section 117(2), which has been amended to take into account provisions omitted by the Amending Act.

In order to re-appoint certain retired officers without offending the prohibition, under proposed section 117(2A), the head of service must consult with the commissioner (which is different from the previous requirement to obtain the commissioner’s consent).  The reason for including a role for the commissioner in this context is that the head of service will have been responsible for making the original decision to retire the officer, as well as deciding to re-engage the person.  Accordingly, the commissioner is to ensure that the decision is appropriate in the circumstances, including where one or both of those decisions of the head of service has been made by a delegate.

In other respects, proposed section 117 is similar to previous provisions applying to appointment on probation.

Clause 89	
Section 117(5), reappointment of retired officers

This clause replaces a reference to part 9 which was omitted by the Amending Act (as misconduct and disciplinary matters are to be comprehensively dealt with in industrial instruments) with a reference to section 122 (which covers termination of employment).

Clause 90	Reappointment of unsuccessful election candidates, section 			118(3)

This clause amends section 118(3) to ensure that the provision continues to operate to provide an unsuccessful election candidate with an equivalent job in the same administrative unit once the head of service is responsible for his or her reappointment.

The previous provision referred only to an office ‘in the administrative unit’ as opposed to ‘in the same administrative unit’.  This is because a relevant chief executive would have been limited to finding a position within his or her administrative unit.  Conversely, as the head of service is in charge of the service as a whole, there is the option for him or her to reappoint an unsuccessful election candidate to an equivalent position anywhere in the service.  Accordingly, the amendment specifies that the candidate is to be returned to the administrative unit where he or she held an office prior to resigning to contest an election.

Clause 91	Quashing etc of conviction, section 118A(5)

This clause omits an appeal to the commissioner from a decision under the provisions dealing with quashing of convictions.  This is because the new head of service role to make decisions in this context as part of the responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).  It is therefore not appropriate for the commissioner to have a role in reconsidering those decisions.

Clause 92	Quashing etc of conviction, section 118A(7), definition of 			appropriate officer, par (b)

This is a consequential amendment required because of the proposed change to section 118A(5) and that the head of service will decide whether the office is equivalent to the office occupied by the person immediately before the disciplinary action was taken.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

Clause 93	Unattached officers, section 119(1)

This clause reallocates the power to declare unattached officers from chief executives to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 119 is similar to previous provisions applying to unattached officers.

Clause 94	Definitionpt 6 Retirement and redeployment of officers, section 		139, definition of officer, paragraph (b)

This clause amends the definition of ‘office’ for part 6 to update references to reflect the new positions in the new single entity structure.  Accordingly, in defining ‘officer’, the term does not cover the head of service or a director-general, amongst others.

Clause 95	Power to reduce officer’s classification, section 140

This clause reallocates the power to reduce an officer’s classification from chief executives and the commissioner to the head of service.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 140 is similar to previous provisions applying to reduction of an officer’s classification.

Clause 96	Redeploy or retire officer from service, section 143(1)

This clause specifies what the head of service must be satisfied of on reasonable grounds for section 143 to apply to certain officers.  In previous provisions, a relevant chief executive had to be satisfied of those conditions.  The amendment reflects the new head of service role to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In all other respects, proposed section 143(1) is similar to previous provisions that targeted this group of officers.

Clause 97	Section 143(2), redeploy or retire officer from service

This clause requires the head of service to take reasonable steps to identify a position in an administrative unit that the officers identified by proposed section 143(1) are capable of performing and qualified to fill.  This requirement previously had to be fulfilled by chief executives.  The amendment reflects the new head of service role to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

In other respects, proposed section 143A(2) is similar to previous provisions applying to identification of redeployment opportunities.

Clause 98	Forfeiture of office, section 221(5)

This clause omits the commissioner’s power to revoke a notice of impending forfeiture of office.  The head of service will exercise this power under the new single entity structure and may do so at any time prior to expiry of the notice without an express provision.

Clause 99	Reappointment of officers taken to have retired under s221, 			section 221(5)

This clause omits section 221(5) as the commissioner is to no longer have the power to reconsider decisions under 221.  This is because the new head of service role to make decisions in this context as part of the responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).  It is therefore not appropriate for the commissioner to have a role in reconsidering those decisions.

Clause 100	Definitionspt 11 Review and appeal, section 223, definition of 		officer

This clause amends the definition of ‘office’ for part 11 to update references to reflect the new positions in the new single entity structure.  Accordingly, in defining ‘officer’, the term does not cover the head of service or a director-general, amongst others.

Clause 101	Returns and information generally, section 241

This clause requires a person to provide returns and/or information to the head of service required for the head of service to perform his or her functions under the Act.  The amendment reflects the new head of service role to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

A similar requirement applies in respect of returns and/or information to the commissioner in recognition of his or her continuing role under the Act.

Clause 102	Engagement of certain former officers and employees 			prohibited, section 248A(2)

This clause requires the commissioner to be consulted prior to the Territory or a territory instrumentality engaging a former officer or employee who has received a termination benefit within a certain period of his or her termination.  In previous provisions, the commissioner’s consent was required prior to engagement.

The amendment is consistent with other amendments in this bill regarding the role of the commissioner.  It reflects the new head of service role to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).  However, in this context, the head of service will have been responsible for making the original decision to terminate employment, as well as deciding to reappoint the person despite the termination.  Accordingly, the commissioner is to ensure that the decision is appropriate in the circumstances, including where one or both of those decisions of the head of service has been made by a delegate.

Clause 103	Engagement of certain former chief executives and executives 		prohibited, section 248B(1)(a)

This is a consequential amendment required because of the proposed changed heading to section 28D (see clause 21).

Clause 104	Engagement of certain former chief executives and executives 		prohibited, section 248B(2)

This clause requires the commissioner to be consulted prior to the Territory or a territory instrumentality engaging a former chief executive/director-general or executive who has received a payment for insufficient notice of not being re-engaged within 3 months of his or her contract ending.  In previous provisions, the commissioner’s consent was required prior to engagement.

The amendment is consistent with other amendments in this bill regarding the role of the commissioner.  It reflects the new head of service role to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).  However, in this context, the head of service will have been responsible for making the original decision not to re-engage, as well as deciding to reappoint the person.  Accordingly, the commissioner is to ensure that the decision is appropriate in the circumstances, including where one or both of those decisions of the head of service has been made by a delegate.

Clause 105	Engagement of certain former heads of service prohibited, new 		section 248C

This clause requires the commissioner to be consulted prior to the Territory engaging a former head of service who has received a payment for insufficient notice of not being re-engaged within 3 months of his or her contract ending.  A similar limitation on re-engagement applies to former director-generals (and chief executives), executives, officers and employees.

In this context though, the commissioner’s role is slightly different as the person proposing to re-engage is in effect the Chief Minister.  Accordingly, the commissioner is to offer advice as required and facilitate the re-engagement.

Clause 106	Dictionary, definition of administering chief executive

This is a consequential amendment required because there is no need for an ‘administering chief executive’ in the new single entity structure.  This is because the new head of service role to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

Clause 107	Dictionary, definition of appeal committee

This is a consequential amendment required because of the Amending Act omitting section 139.

Clause 108	Dictionary, definition of authorised doctor

This is a consequential amendment required because the head of service is to authorise doctors in the new single entity structure.  This is because the new head of service role to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

Clause 109	Dictionary, definitions of authorised officer, chief executive and  		direction

The definition of ‘authorised officer’ is omitted because of the Amending Act omitting section 201.

The definition of ‘chief executive’ is omitted as this position is to be replaced by the office of director-general in the new single entity structure (see clause 17).

The definition of ‘direction’ is omitted as a consequence of the Amending Act omitting section 99.

Clause 110	Dictionary, new definition of director-general

This is a consequential amendment required because of the creation of the new office of director-general in the new single entity structure (see clause 17).

Clause 111	Dictionary, definition of eligible public employment

This is a consequential amendment required because of the Amending Act omitting part 9.

Clause 112	Dictionary, definition of employee

This is a consequential amendment to revise the definition of ‘employee’ to update references to reflect the new positions in the new single entity structure.  Accordingly, in defining ‘employee’, the term includes the head of service and a director-general, as well as an executive, a person engaged on a temporary basis and an employee under the Public Sector Management (Consequential and Transitional Provisions) Act 1994.

Clause 113	Dictionary, new definition of head of service

This is a consequential amendment required because of the creation of the new office of the head of service in the new single entity structure in proposed new division 3.2A (see clause 13).

Clause 114	Dictionary, definition of notified

The clause omits the definition of ‘notified’ because the Amending Act omitted section 99.

Clause 115	Dictionary, definition of office, paragraph (a)

This is a consequential amendment required because of the proposed changed heading to division 4.1A (see clause 42).

Clause 116	Dictionary, new definitions of office of head of service and public 		sector officer

A definition of ‘office of head of service’ has been added because of the creation of the new office of the head of service in the new single entity structure in proposed section 23A (see clause 13).

A definition of ‘public sector officer’ has been added here because of the insertion of a new definition of ‘public sector officer’ in proposed section 36 (see clause 32).

Clause 117	Dictionary, definition of relevant chief executive and review

The omission of the definition of ‘relevant chief executive’ is required because chief executives are to be replaced by directors-general in the new single entity structure (see clause 17).

The omission of the definition of ‘review’ is required as this definition only applied to provisions in the Act that were omitted by the Amending Act.

Clause 118	Dictionary, definition of service

This is a consequential amendment required because of the amended definition of ‘service’ in proposed section 12 (see clause 5).

Clause 119	Dictionary, definition of specified

This is a consequential amendment required because of the Amending Act omitting section 99.

Clause 120	Dictionary, definition of unattached officer

This is a consequential amendment required because of the Amending Act omitting part 9.

Clause 121	Further amendments, replace mentions of a chief executive with 		the head of service

This clause contains consequential amendments to omit references to ‘a chief executive’ where they occur, and replace them with references to ‘the head of service’.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

Clause 122	Further amendments, replace mentions of administering chief 		executive with head of service

This clause contains consequential amendments to omit references to ‘administering chief executive’ where they occur, and replace them with references to ‘the head of service’.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

Clause 123	Further amendments, replace mentions of chief executive with 		director-general

This clause contains consequential amendments to omit references to ‘chief executive’ where they occur, and replace them with references to ‘director-general’.  This reflects that chief executives are to be replaced by directors-general in the new single entity structure (see clause 17).

Clause 124	Further amendments, replace mentions of chief executive with 		head of service

This clause contains consequential amendments to omit references to ‘chief executive’ where they occur, and replace them with references to ‘head of service’.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

Clause 125	Further amendments, replace mentions of chief executive of an 		administrative unit with head of service

This clause contains consequential amendments to omit references to ‘chief executive of an administrative unit’ where they occur, and replace them with references to ‘head of service’.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

Clause 126	Further amendments, replace mentions of chief executive of the 		administrative unit with head of service

This clause contains consequential amendments to omit references to ‘chief executive of the administrative unit’ where they occur, and replace them with references to ‘head of service’.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

Clause 127	Further amendments, replace mentions of chief executives with 		directors-general

This clause contains consequential amendments to omit references to ‘chief executives’ where they occur, and replace them with references to ‘directors-general’.  This reflects that chief executives are to be replaced by directors-general in the new single entity structure (see clause 17).

Clause 128	Further amendments, replace mentions of chief executive’s with 		director-general’s

This clause contains consequential amendments to omit references to ‘chief executive’s’ where they occur, and replace them with references to ‘director-general’s’.  This reflects that chief executives are to be replaced by directors-general in the new single entity structure (see clause 17).

Clause 129	Further amendments, replace mentions of Chief Minister with 		head of service

This clause contains consequential amendments to omit references to ‘Chief Minister’ where they occur, and replace them with references to ‘head of service’.  This reflects the new head of service role to have responsibility for the management of the employment of members of the service under proposed section 23BG (see clause 13), including engagement of directors-general (see clause 17).

Clause 130	Further amendments, mentions of commissioner with head of 		service

This clause contains consequential amendments to ‘commissioner’ where they occur, and replace them with references to ‘head of service’.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

Clause 131	Further amendments, mentions of relevant chief executive with 		head of service

This clause contains consequential amendments to omit references to ‘relevant chief executive’ where they occur, and replace them with references to ‘head of service’.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).

Clause 132	Further amendments, mentions of relevant chief executive’s with 		head of service’s

This clause contains consequential amendments to omit references to ‘relevant chief executive’s’ where they occur, and replace them with references to ‘head of service’s’.  This reflects the new head of service role is to have responsibility for the management of the employment of members of the service under proposed section 23B(g) (see clause 13).