What happens next, roles and responsibilities

Back to question list

Role, responsibilities and where to get more information

What is the role of the review adviser and the delegate?

The review adviser is not the decision-maker.

They are the contact point for you and the agency. They assist the Merit Protection Commissioner's delegate with the review.

The review adviser gathers relevant information so that the delegate can properly consider your application.

The delegate is the final decision-maker.

What is expected from those involved in a review?

You can expect this Office to:

  • treat you with respect and courtesy, and in accordance with the APS Values and the APS Code of Conduct
  • be impartial and unbiased
  • properly consider all relevant matters
  • answer your questions and keep you informed of progress.

The Office expects the agency to:

  • provide us with all the relevant material in a logical manner and as quickly as possible
  • provide the review applicant with a copy of any information given to this Office. Where agencies have concerns about releasing information subject to legal professional privilege they should raise them with staff in the Office.
  • respond to requests for further information in a timely manner, including assisting us to contact and speak to relevant employees or other people when required.

The Office expects the review applicant to:

  • treat us with respect and courtesy, and in accordance with the APS Values and the APS Code of Conduct
  • provide us with relevant information in a timely manner
  • ensure their contact details are kept up-to-date.

Applying for a review and what happens next

How do I apply for a primary review by my agency?

For review by your agency, contact your agency's human resources area or check your agency's intranet. They will advise you on how to make a review application to your agency.

What happens in an agency review?

If an action is reviewable, you meet the criteria (eligibility and timeframes) and you apply for review, your agency head must:

  • review the action using their policies and procedures
  • attempt to resolve your concern
  • advise you in writing of the outcome, the reasons for the decision, and any action the agency intends to take
  • advise you of your right of review by the Merit Protection Commissioner.

Agency review process

I’m not satisfied with my agency review. How do I apply for a secondary review of a general employment matter by the Merit Protection Commissioner?

The general employment review application form for review by the Merit Protection Commissioner is available.

You must submit your review application in writing to your agency.

Your application must state:

  • why you are seeking a review
  • the outcome you are seeking.

Your agency must:

  • refer your application to the Merit Protection Commissioner
  • provide us with all information relevant to the review it has  undertaken
  • provide you with a copy of the same information provided to this office (Regulation 5.30(2))
  • do these things within 14 days unless it applies for an extension (Regulation 5.30(1)).

What happens in a secondary review of general employment matters by the Merit Protection Commissioner?

  1. For general employment reviews, the Office acknowledges receipt of your application. If it isn't accepted, we advise you of the reasons.
  2. Your agency is informed and asked to provide information from their review file.
  3. Your case is assigned to a review adviser.
  4. The review adviser contacts you and advises whether you need to provide more information. You may be asked to participate in a telephone interview with the review adviser.
  5. After the review adviser has considered all the information, your case is sent to the Merit Protection Commissioner's delegate.
  6. The delegate makes a recommendation and provides a report of their findings to you and to your agency.

secondary review chart

In most cases, a review by the Merit Protection Commissioner addresses whether:

-   your agency's procedures, policy or guidelines were substantially complied with

-  the requirements of procedural fairness were substantially observed

-  the decision under review was appropriate or reasonable in the circumstances

-  the decision will then be confirmed, varied or set aside.

What are the outcomes of a review?

We recommend to your agency head to either:

  • uphold
  • vary
  • set aside

the agency decision(s).

The agency is not obliged by law to follow the Merit Protection Commissioner's recommendation.

But it is unusual for an agency not to act on a recommendation from the Merit Protection Commissioner.

The agency head is required to tell the Merit Protection Commissioner in writing of their decision and the reasons for not following the Merit Protection Commissioner's recommendation.

If the Merit Protection Commissioner is not satisfied with the response to recommendations contained in the report to an Agency Head (Regulation 5.3.2(4)), the matter may be reported to the Agency Minister, the Prime Minister and the Parliament (sub section 33(6) of the Public Service Act).

What if I am not satisfied with the outcome of a Merit Protection Commissioner review?

If you are not satisfied with the outcome of a Merit Protection Commissioner review, you have no further right of review under the Public Service Act or the Regulations.

However, you can apply for judicial review. In such cases, it is advisable to seek independent legal advice.

Do I need a lawyer? Do I have to pay?

The review process in the Public Service Act is designed so employees do not need a lawyer.  

There is a legislative and policy requirement to encourage productive and harmonious working environments in which:

  • employees' concerns are dealt with quickly, impartially and fairly
  • review processes are consistent with alternative dispute resolution methods (Regulation 5.1).

As an applicant you are encouraged to explain in your own words what has happened and your concerns.

If you want to be represented in the review, you must write to the Merit Protection Commissioner to obtain her agreement (Regulation 5.33(2)). Only in rare circumstances does the Merit Protection Commissioner agree to an applicant being represented.

If you choose to consult with, or engage, a lawyer you will be responsible for the lawyer's costs.

The Merit Protection Commissioner does not charge agencies or employees to conduct a review. Review by the Merit Protection Commissioner is a statutory right under the Public Service Act:

  • APS Employment Principle – the APS makes fair employment decisions with a fair system of review (section 10A)
  • reviews of actions – an APS employee is entitled to review … of an APS action that relates to his or her employment – section 33
  • Public Service Regulations 1999 – Employee complaint about an action or decision relating to employment – review of actions Part 5.