Victorian Numbered Acts Victorian Numbered ActsFor Part 4 of the Public Administration Act 2004 substitute —
(1) The Victorian Public Sector Commission is established.
(2) The Commission is to be constituted by the Victorian Public Sector Commissioner.
The objectives of the Commission are—
(a) to strengthen the efficiency, effectiveness and capability of the public sector in order to meet existing and emerging needs and deliver high quality services; and
(b) to maintain, and advocate for, public sector professionalism and integrity.
(1) In order to give effect to the objective specified in section 38(a), the Commission has the following functions—
(a) to assess and provide advice and support on issues relevant to public sector administration, governance, service delivery and workforce management and development;
(b) to conduct research and disseminate best practice in relation to public sector administration, governance, service delivery and workforce management and development;
(c) to collect and report on whole of government data;
(d) to conduct inquiries as directed by the Premier (see Division 4).
(2) Without limiting subsection (1), the Commission—
(a) must perform any work falling within its functions under subsection (1)(a), (b) or (c) as requested by the Premier; and
(b) may perform any work falling within its functions under subsection (1)(a), (b) or (c) as requested by a Minister or a public sector body.
(1) In order to give effect to the objective specified in section 38(b), the Commission has the following functions—
(a) to advocate for an apolitical and professional public sector;
(b) to issue and apply codes of conduct and standards (see sections 61 and 62);
(c) to monitor and report to public sector body Heads on compliance with the public sector values, codes of conduct, and public sector employment principles and standards (see section 63);
(d) to review employment related actions and make recommendations following those reviews (see sections 64 and 65);
(e) to maintain a register of lobbyists and a register of instruments (see sections 66 and 67).
(2) In performing a function specified in subsection (1)(a), (b), (c) or (d), the Commission is not subject to Ministerial direction or control.
(1) Subject to this Act, the Commission has power to do all things necessary or convenient to be done for or in connection with the performance of its functions under this Act or any other Act.
(2) Without limiting subsection (1), the Commission may require a public sector body to provide any document or information required by the Commission in connection with the performance of its functions.
(3) The Commission may specify the form in which information required under subsection (2) is to be provided.
(4) Information required to be provided to the Commission under subsection (2) may include personal information about an employee of the public sector body.
(1) A public sector body must cooperate with the Commission in the performance by the Commission of any of its functions.
(2) A public sector body must—
(a) provide to the Commission any document and any information required under section 41(2); and
(b) in the case of information required to be provided in a form specified under section 41(3), provide the information in that form.
(1) The Governor in Council, on the recommendation of the Premier, may appoint an eligible person as the Victorian Public Sector Commissioner.
(2) A person is eligible to be appointed under subsection (1) if the Premier is satisfied that the person has appropriate knowledge and experience in one or more of the fields of public administration, governance, law, public policy or senior management.
(3) A person is not eligible to be appointed under subsection (1) if the person is currently—
(a) a member of the Parliament of Victoria; or
(b) a member of the Parliament of the Commonwealth, another State or a Territory; or
(c) a Councillor; or
(d) a Department Head.
(1) The Commissioner is appointed on the terms and conditions (including the remuneration and allowances) that are specified in the instrument of appointment.
(2) The terms and conditions may provide for the appointment of the Commissioner on a full-time or part-time basis.
(3) Subject to this Part, the Commissioner—
(a) holds office for a period of not less than 3 years and not more than 5 years, as specified in the instrument of appointment; and
(b) is eligible for re-appointment.
(4) Except with the written permission of the Premier, the Commissioner must not—
(a) engage in any other employment; or
(b) carry on any business, profession or trade; or
(c) hold any other office or
position, paid or unpaid.
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The Commissioner ceases to hold office if he or she—
(a) resigns by written notice given to the Premier; or
(b) becomes an insolvent under administration; or
(c) is convicted of—
(i) an indictable offence; or
(ii) an offence that, if committed in Victoria, would be an indictable offence; or
(d) nominates for election to the Parliament of Victoria or of the Commonwealth or of another State or a Territory or for election as a Councillor; or
(e) is employed as a Department Head; or
(f) is removed from office under section 46.
(1) The Governor in Council, on the recommendation of the Premier, may remove the person appointed as Commissioner from office.
(2) The Premier may only recommend the removal from office of the person appointed as Commissioner if the Premier is satisfied that the person is unfit to hold the office because of incapacity or misconduct or because the person has brought the Commission into disrepute.
(1) The Governor in Council, on the recommendation of the Premier, may appoint an eligible person to act in the office of the Commissioner—
(a) during a vacancy in that office; or
(b) during a period when the Commissioner is absent from duty or is, for any reason, unable to perform the duties of the office.
(2) An appointment under subsection (1) is for the period, not exceeding 12 months, specified in the instrument of appointment.
(3) Subject to subsection (5), the Premier may by instrument appoint an eligible person to act in the office of the Commissioner—
(a) during a vacancy in that office; or
(b) during a period when the Commissioner is absent from duty or is, for any reason, unable to perform the duties of the office.
(4) An appointment under subsection (3) is for the period, not exceeding 3 months, specified in the instrument of appointment.
(5) The Premier must not make more than one appointment under subsection (3) in relation to the same vacancy or absence.
(6) The appointment of an Acting Commissioner under this section is on the terms and conditions (including the remuneration and allowances) that are specified in the instrument of appointment.
(7) A person is eligible to be appointed to act in the office of the Commissioner if the person would be eligible to be appointed as the Commissioner under section 43.
(8) An Acting Commissioner has all the powers and functions of the Commissioner and in exercising those powers and performing those functions is subject to the same requirements that apply to the Commissioner.
(1) The Commissioner has—
(a) all the powers and functions of the Commission conferred on it by or under this or any other Act; and
(b) any other powers or functions conferred on the Commissioner by or under this or any other Act.
(2) All acts or things done by the Commissioner in the name or on behalf of the Commission are taken to have been done by the Commission.
(1) The Commissioner may by instrument delegate any power or function of the Commissioner under this or any other Act (other than a power or function specified in subsection (2)) to—
(a) a member of the staff of the Commission; or
(b) a person engaged by the Commission to assist the Commission in the performance of its functions.
(2) The following powers of the Commissioner are not delegable—
(a) a power of delegation under
subsection (1);
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(b) the power under section 17 to review the performance of a public service body Head;
(c) the power under section 59 to report on the conduct and findings, and any recommendations, of an inquiry;
(d) the power under section 61 to issue codes of conduct;
(e) the power under section 62 to issue employment standards;
(f) the power under section 63 to make recommendations in relation to the oversight of public sector compliance with the public sector values, codes of conduct, the public sector employment principles and standards;
(g) the power under section 65 to make recommendations following a review of an employment related action conducted by the Commission under section 64.
(1) If the Commissioner considers that he or she has a conflict of interest in any matter that is the subject of an inquiry, a review of an employment related action or any other activity required or requested to be conducted by the Commission, the Commissioner must—
(a) decline to conduct the inquiry, review or other activity; and
(b) notify the Secretary to the Department of Premier and Cabinet of the conflict of interest.
(2) On being notified by the Commissioner under subsection (1)(b) of a conflict of interest, the Secretary must authorise a person—
(a) to conduct the inquiry, review or activity; and
(b) in the case of an inquiry or a review of an employment related action, to make recommendations following the inquiry or review.
(3) The Secretary must not authorise a person under subsection (2) unless—
(a) the Secretary is satisfied that—
(i) the person is qualified to be authorised because the person has appropriate knowledge and experience in one or more of the fields of public administration, governance, law, public policy or senior management; and
(ii) the person is unconnected with the matter of the inquiry, review or activity and does not have a conflict of interest in the matter; and
(b) in the case of an authorisation to conduct an inquiry, the Premier has approved the authorisation of the person.
(4) In conducting an inquiry, a review of an employment related action or another activity, a person authorised under subsection (2)—
(a) may exercise all the relevant powers and functions of the Commissioner; and
(b) in exercising those powers and performing those functions is subject to the same requirements that would apply to the Commissioner.
(5) An inquiry, a review of an employment related action or another activity conducted by a person authorised under subsection (2) is not invalid by virtue of a defect or irregularity in, or in connection with, the authorisation.
(1) Any employees that are necessary to enable the Commission to perform its functions may be employed under Part 3 of the Public Administration Act 2004 .
(2) The Commission may engage any contractor, agent or other person to assist in the performance of the functions of the Commission.
(1) The Advisory Board is established.
(2) The Advisory Board consists of—
(a) the Secretary to the Department of Premier and Cabinet; and
(b) other members appointed by the Premier under section 53.
(1) The Premier may by instrument appoint not more than 7 persons as members of the Advisory Board.
(2) In appointing members of the Advisory Board, the Premier must have regard to the mix of knowledge, skills and experience of the members of the Advisory Board, including those pertaining to the public sector, business, service delivery and regional matters.
(3) The appointment of a member of the Advisory Board appointed under subsection (1)—
(a) is for the period, not exceeding 3 years, specified in the instrument of appointment; and
(b) subject to subsection (5), is on the terms and conditions specified in the instrument of appointment.
(4) A person appointed as a member of the Advisory
Board is eligible for
re-appointment.
(5) A public sector employee appointed to the Advisory Board is not entitled to remuneration in relation to that appointment.
(1) The role of the Advisory Board is to provide to the Commission—
(a) advice in relation to the preparation of the annual plan and strategic plan of the Commission; and
(b) strategic advice in relation to matters relevant to the objectives and functions of the Commission.
(2) The Commission must have regard to the advice of the Advisory Board—
(a) in the performance of its functions; and
(b) in the development of its annual and strategic plans.
(1) The Secretary to the Department of Premier and Cabinet is the chairperson of meetings of the Advisory Board.
(2) Subject to this Act, the Advisory Board may regulate its own procedures.
(1) The Premier may direct the Commission to conduct an inquiry into any matter relating to a public sector body other than—
(a) the IBAC; or
(b) the office of the Ombudsman; or
(c) the Victorian Auditor-General's Office; or
(d) the Victorian Electoral Commission; or
(e) the Victorian Inspectorate within the meaning of the Victorian Inspectorate Act 2011 .
(2) An inquiry may be conducted in relation to a body even if a provision of an Act other than this Act has the effect that the body or a member of the body or of the governing body (by whatever name called) of the body is not subject to this Act or to any part of this Act.
(1) A person conducting an inquiry may, in connection with the inquiry, enter any premises of a body that is the subject of the inquiry.
(2) Sections 14, 15, 16 and 21A of the Evidence (Miscellaneous Provisions) Act 1958 apply to a person conducting an inquiry as if he or she were a Board or the Chairman of a Board appointed by the Governor in Council.
(3) A person is not excused from producing any document or answering any question at an inquiry on the ground that the production of the document or the answering of the question is prohibited by or under any other Act.
(4) The production of a document or the answering of a question, when required at an inquiry, does not constitute a breach of a provision made by or under any Act prohibiting the disclosure of information of a kind contained in that document or answer.
(5) Nothing in this section abrogates any privilege or immunity existing by custom or convention that relates to the production of documents of previous Governments.
(1) If the person conducting an inquiry agrees, a person or body may be accompanied to the inquiry by a legal practitioner or other person.
(2) The person conducting an inquiry is not bound by the rules of evidence and may be informed on any matter in issue at the inquiry in any manner that he or she considers appropriate.
(3) The person conducting an inquiry may give directions as to the procedure to be followed at or in connection with the inquiry.
(1) On the completion of an inquiry, the Commission must—
(a) within the period required by the Premier, prepare a report on the conduct and findings, and any recommendations, of the inquiry; and
(b) immediately after preparing the report, provide a copy of the report to—
(i) the Premier; and
(ii) the Minister responsible for any body that is the subject of the inquiry.
(2) As soon as practicable after a Minister is provided with a report under subsection (1)(b)(ii), the Minister must provide to the Premier information as to any action taken or proposed to be taken in relation to the subject-matter of the report.
(3) In addition, if the inquiry relates to a special body, the Minister must cause a copy of the report, together with information as to any action taken or proposed to be taken in relation to the subject-matter of the report, to be laid before each House of Parliament within 30 sitting days of that House after the day on which that Minister was provided with a copy of the report.
(1) Nothing in this Division empowers the Commission to conduct, or the Premier to direct the conduct of, an inquiry into any exercise by a body of a function that is of a judicial or quasi-judicial nature.
(2) The conduct of an inquiry into any matter relating to a body that exercises functions that are of a judicial or quasi-judicial nature must not in any way impede the exercise by the body of those functions.
(1) The Commission must prepare and issue codes of conduct based on the public sector values.
(2) The purpose of a code of conduct is to promote adherence to the public sector values.
(3) A code of conduct is binding on any public official or class of public official to whom it applies.
(4) Subject to subsection (5), the Commission may determine to whom a code of conduct applies.
(5) If a code of conduct is based on public sector values which a special body is not required to apply under section 7(2), the Commission must not apply that code of conduct to the special body or its employees to the extent that it relates to those public sector values.
(6) A contravention of a code of conduct by a public official who is bound by the code is capable of constituting misconduct .
(7) The Commission may amend and re-issue a code of conduct or issue a new code of conduct in substitution for a previously issued one.
(1) The Commission must establish and issue standards concerning the application of the public sector employment principles.
(2) Standards issued under subsection (1) are binding on the public sector bodies to which they apply and on persons employed in those bodies.
(3) The Commission may determine to whom a standard issued under subsection (1) applies.
(4) A public sector body Head must ensure that persons employed in the body are informed about the application of the public sector employment principles and standards issued under subsection (1).
(1) The Commission may make recommendations to a public sector body Head on the steps that should be taken to change or introduce processes in relation to the public sector body in order to promote or comply with any of the following, to the extent that they apply to the public sector body—
(a) the public sector values;
(b) codes of conduct;
(c) the public sector employment principles;
(d) standards.
(2) If a public sector body Head has not adopted a
recommendation made under subsection (1) within 14 days after it is made,
he or she must provide the Commission with a written statement of reasons for
not adopting the recommendation within 14 days after the end of that period.
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(3) Reasons given to the Commission by a public sector body Head for not adopting a recommendation made under subsection (1) may be included in the annual report of the Commission.
(1) Subject to this section, an employee is entitled to have an action taken within a public service body that relates to his or her employment reviewed in accordance with the regulations and any standards issued under section 62.
Notes
1 Public service bodies include offices specified in section 16(1)—see section 16(2).
2 A review of an employment related action (other than an initial review) taken in respect of an employee of the Commission may enliven a conflict of interest—see section 50.
(2) Unless the regulations otherwise provide, an employee is only entitled to have a review of a proposed appointment or promotion on the ground of a significant deficiency in the selection process or the process on an initial review.
(3) Regulations made for the purposes of this section may—
(a) prescribe exceptions to the entitlement to a review in circumstances where—
(i) the matter is frivolous, vexatious or lacking in substance; or
(ii) the applicant does not have sufficient personal interest; or
(iii) the applicant has not sought an initial review within the public service body to which he or she belongs; or
(iv) the application is not made within a specified period; or
(v) the matter is the subject of a proceeding in any court or tribunal initiated by the applicant, including a proceeding under Division 2 of Part 8 of the Equal Opportunity Act 2010 ; or
(vi) the matter could more appropriately be the subject of a proceeding in any court or tribunal, including a proceeding under Division 2 of Part 8 of the Equal Opportunity Act 2010 ;
(b) provide for procedures for a review, including empowering the appointment of a person or body to conduct a review and specifying circumstances in which the applicant or any other party to a review may be accompanied by a legal practitioner or other person;
(c) provide for an initial review to be conducted within the public service body to which the employee belongs;
(d) provide for the powers available to the person or body conducting an initial review within the public service body to which the employee belongs;
(e) provide for an application for a review to be made directly to the Commission in specified circumstances;
(f) provide for an application for a review to be referred to the Commission in specified circumstances on completion of an initial review within the public service body to which the employee belongs;
(g) provide for the powers available to the Commission on conducting a review, including power to require the appropriate public service body Head to provide the Commission with information or documents and power to interview any employee in the body.
(4) Regulations made for the purposes of this section—
(a) must not require the Commission to hold a formal hearing on a review; and
(b) must ensure that the rules of natural justice are adhered to on a review.
(1) A person or body (including the Commission) that has conducted a review under section 64 may make recommendations in a report on the review but does not have power to make any binding decision as a result of the review.
(2) Without limiting subsection (1), recommendations under that subsection may include a recommendation that—
(a) a decision be reconsidered; or
(b) processes within the public service body be changed.
(3) If the appropriate public service body Head has not adopted a recommendation made in a report on a review within 14 days after receiving the report, he or she must, within 14 days after the end of that period, provide a written statement of the reasons for not adopting the recommendation to the Commission, the applicant for the review and any other person affected by the recommendation.
(4) Reasons given by a public service body Head for not adopting a recommendation made in a report of a review may be included in the annual report of the Commission.
(1) The Commission must maintain a register of lobbyists.
(2) The register must be kept electronically.
(3) The register must be maintained in accordance with the Victorian Government Professional Lobbyist Code of Conduct as issued by the Premier from time to time.
(4) The Commission must ensure, as far as practicable, that the contents of the register are accessible to the public at all times without charge on the Internet.
(1) The Commission must maintain a register of instruments issued under this Act.
(2) The register must be kept electronically.
(3) The register must contain up-to-date versions of the following—
(a) any codes of conduct issued by the Commission;
(b) any standards issued by the Commission;
(c) any Orders made by the Governor in Council under Part 5;
(d) any other instrument issued under this Act that the Premier directs, in writing, the Commission to enter in the register.
(4) The Commission may enter additional material in the register if the Commission considers that it is likely to be useful to public sector employees.
(5) The Commission must ensure, as far as practicable, that the contents of the register are accessible to the public at all times without charge on the Internet.
(1) The Commission must prepare an annual plan before each financial year.
(2) The annual plan must—
(a) set out how the plan relates to, and supports, the strategic plan of the Commission; and
(b) specify priority areas for the forthcoming financial year; and
(c) identify key outputs and specific activities for each of those areas.
(3) The Commission must consult with the Advisory Board in the development of its annual plan to determine the priority areas and specific activities for the forthcoming financial year.
(4) Before 1 May of the preceding financial year, the Commission must submit a draft of the annual plan to the Premier for approval.
(5) The Premier must consider the draft of the annual plan and may approve it—
(a) with or without changes; and
(b) subject to any conditions.
(6) The Premier may, at any time during a financial year, direct the Commission to amend the approved annual plan for that financial year.
(7) The Commission must act consistently with the annual plan in the performance of its functions.
(1) The Commission must prepare a three year strategic plan—
(a) in its first year of operation; and
(b) every third year after that year.
(2) The strategic plan must identify the matters that present challenges and opportunities for the public sector and set out how the priorities of the Commission are to be strategically aligned with those matters.
(3) The Commission must consult with the Advisory Board to identify those matters and determine how the priorities of the Commission are to be aligned with those matters.
(4) Before the date fixed by the Premier in relation to each period of 3 years, the Commission must submit a draft of the strategic plan to the Premier for approval.
(5) The Premier must consider the draft of the strategic plan and may approve it—
(a) with or without changes; and
(b) subject to any conditions.
(6) The Premier may, at any time during a 3 year period, direct the Commission to amend the approved strategic plan for that period.
The annual report of the Commission's operations required under Part 7 of the Financial Management Act 1994 must include explanations of—
(a) how the operations of the Commission relate to its objectives; and
(b) how the Commission has achieved the priorities identified in its annual and strategic plans.
The Freedom of Information Act 1982 applies to, and in respect of, the Commission as if it were a department within the meaning of that Act and as if the Commissioner were the principal officer of the Commission for the purposes of that Act.
Part 7A of the Financial Management Act 1994 applies to, and in respect of, the Commission as if it were a department within the meaning of that Act and as if the Commissioner were the accountable officer of the Commission for the purposes of that Part.
(1) The Commissioner must notify the IBAC of any matter of which the Commissioner becomes aware in the performance of functions or duties or the exercise of powers of the Commission under this Act or any other Act that appears to involve corrupt conduct.
(2) This section does not apply to corrupt conduct of the IBAC or IBAC personnel.
For the purposes of deciding whether to make a notification under this Division to the IBAC, the Commissioner may consult the IBAC.
(1) At any time, the Commissioner may provide or disclose any information received or obtained in the course of the performance of functions or duties or the exercise of powers of the Commission under this Act or any other Act to the IBAC if the Commissioner considers that—
(a) the information is relevant to the performance of the functions or duties or the exercise of powers of the IBAC; and
(b) it is appropriate for the information to be brought to the attention of the IBAC, having regard to the nature of the information.
(2) This section applies subject to any restriction on the provision or disclosure of information under this Act or any other Act (including any Commonwealth Act).
(1) If the Commission is, or becomes, aware of an IBAC investigation, the Commission must take all reasonable steps to ensure that the performance of its functions or duties or the exercise of its powers does not prejudice the IBAC investigation.
(2) For the purpose of ensuring compliance with subsection (1), the Commission may consult the IBAC.
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