Tasmanian State Service Act 1984

Tasmanian State Service Act 1984

An Act to establish and regulate the State Service

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Tasmanian State Service Act 1984 .

2.   Commencement

(1)  This section and section 1 shall commence on the day on which this Act receives the Royal Assent.

(2)  [Section 2 Subsection (2) amended by No. 61 of 1984, s. 4 ]Except as provided in subsection (1) , this Act shall commence on such day as may be fixed by proclamation.

3.   Interpretation

[Section 3 Subsection (1) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 3 Subsection (1) amended by No. 19 of 1991, s. 4 ][Section 3 Subsection (1) amended by No. 59 of 1992, s. 65 ][Section 3 Subsection (1) amended by No. 60 of 1993, s. 4 ]

(1)  [Section 3 Subsection (1) amended by No. 61 of 1985, s. 5 ]In this Act, unless the contrary intention appears –

Administrative Instructions means Administrative Instructions issued by the Minister under section 26 ;

[Section 3 Subsection (1) amended by No. 17 of 1996, Applied:14 May 1998] Agency means a Government department or a State authority or other organization specified in Column 1 of Schedule 1 ;

appropriate Minister, when used in relation to an Agency, means the Minister for the time being administering that Agency;

award means an award, determination, decision, order, enterprise agreement or industrial agreement in force under the Industrial Relations Act 1988 of the Commonwealth, the Industrial Relations Act 1984 or under any other Act of the Commonwealth or of Tasmania which provides for the determination of conditions of employment of a person;

classification means assignment of a specified level or range of salary or status on a scale described in an award to a position in the State Service;

Commissioner means the Commissioner for Public Employment appointed and holding office under section 7 and, except in that section and section 8 , includes a person for the time being appointed to act as Commissioner in accordance with section 9 ;

Commissioner for Review means the person appointed and holding office under section 60 as Commissioner for Review and, except in that section and section 61 , includes a person for the time being appointed to act as Commissioner for Review in accordance with section 62 ;

contract employee means an employee who is appointed and employed on terms and conditions specified in a contract of service;

employee means a permanent employee or temporary employee, but does not include a person appointed to an office under section 7 , 29 or 60 or a person in respect of whom an agreement of arrangement under section 44 (1) has been entered into;

Employment Instructions means Employment Instructions issued by the Commissioner under section 13 ;

equal employment opportunity program means a program which enables employees of a class determined by the Commissioner under subsection (1A) to have equal opportunities in relation to their employment with other employees;

functions includes duties;

Government department means a department established under section 24 ;

Head of an Agency or Head means the Head of an Agency referred to in section 28 ;

merit principle means the principle referred to in section 4 (1) ;

the Minister means the Minister for the time being administering this Act;

permanent employee means a person who is appointed to a position in the State Service in accordance with section 36 , section 38 (11) or 51 ;

position does not include an office of Head of an Agency or an office prescribed under section 29 (1) ;

promotion means the giving to an employee of a higher attainable maximum salary level than the salary level that the employee had immediately before the employee was given that salary level;

Redeployment Register means the register kept by the Commissioner pursuant to section 48 ;

the regulations means regulations made and in force under this Act;

salary includes wages, and salary or wages payable by increments within a range of salary or wages;

Secretary means the Secretary of the Department;

State authority means a body or authority, whether incorporated or not, which is established or constituted by or under an Act or under the royal prerogative, being a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister, or another State authority, but does not include a Government department;

temporary employee means a person who is employed under section 38 .

(1A)  [Section 3 Subsection (1A) inserted by No. 19 of 1991, s. 4 ]For the purposes of the definition of "equal employment opportunity program", the Commissioner may from time to time in Employment Instructions determine classes of employees.

(2)  [Section 3 Subsection (2) amended by No. 17 of 1996, Applied:14 May 1998] For the purposes of this Act, the State Service shall consist of all the persons employed as employees in the Agencies specified in Column 1 of Schedule 1 and the positions in those Agencies.

(3)  In this Act, the term this Act, except in sections 13 and 26 , includes Employment Instructions and Administrative Instructions issued under this Act.

(4)  A reference in this Act to employment, in relation to an employee, is a reference to employment in the State Service.

(5)  Where there is an inconsistency between a provision of this Act and a provision of any other law in force in Tasmania, other than an award, being a law that makes specific provision in respect of the appointment of a person to the State Service or the promotion of an employee or an employee included in a class of employees or any matter relating to the employment of such an employee, the provision of that law shall be read subject to the provision of this Act.

(6)  [Section 3 Subsection (6) substituted by No. 59 of 1992, s. 65 ]If a provision of this Act is inconsistent with an award, the award is to be read subject to that provision.

4.   Principles relating to employment in the State Service

(1)  All permanent employment in the State Service shall be in accordance with the merit principle which is as follows – the appointment of persons as permanent employees and the promotion of permanent employees shall be on the basis of the individual capacity of those persons or permanent employees notwithstanding any disability of those persons or employees in relation to performing the work associated with the position for which those persons or employees are seeking to be appointed or promoted, and having particular regard to the knowledge, skills, qualifications, experience and potential for future development of those persons or permanent employees in their employment in the State Service.

(2)  All employees shall receive fair and equitable treatment in their employment in the State Service.

(3)  For the purposes of subsection (1) , disability, in relation to any person or permanent employee, means any degree of infirmity, malformation or disfigurement from which that person suffers, whether arising from a condition subsisting at birth or from an illness or injury, and, in particular, includes –

(a) any degree of paralysis or lack of co-ordination from which that person suffers; and

(b) the loss of any part of the body, whether by amputation or otherwise; and

(c) any loss or impairment of any of the faculties of sight, hearing or speech; and

(d) any impairment of intellectual faculties unless such impairment would prevent the person or employee performing the work associated with the position for which that person or employee is seeking to be appointed or promoted; and

(e) any physical reliance on a guide dog or wheel chair or any remedial appliance or device; and

(f) any epilepsy from which that person suffers.

5.   Application of Act

(1)  Subject to this section, this Act applies to and in relation to employees.

(2)  This Act does not apply to or in relation to –

(a) a person who is remunerated by fees, allowances or commission only; or

(b) a person who is employed in an honorary capacity only; or

(c) a person in respect of whom an agreement or arrangement has been entered into under section 44 (1) .

(3)  The Governor may, by order, declare that any specified provision or provisions of this Act shall not apply –

(a) to persons specified in the order; or

(b) to a class of persons specified in the order; or

(c) to Agencies specified in the order; or

(d) to positions or a class of positions specified in the order –

being persons to whom or Agencies or positions to which that provision or those provisions would have applied but for the order.

(4)  An order made under subsection (3) may be expressed to be in force for a period specified in the order, in which case the order shall be in force for the period so specified and shall then cease to have effect.

(5)  The provisions of section 47 (3) , (3A) , (4) , (5) , (6) and (7) of the Acts Interpretation Act 1931 apply to an order made under subsection (3) in the same manner as they apply to regulations.

6.   Amendment to Schedule 1

(1)  [Section 6 Subsection (1) amended by No. 17 of 1996, Applied:14 May 1998] The Governor may, by order, amend Column 1 of Schedule 1 –

(a) by omitting the name of any Agency specified in that Schedule; or

(b) by inserting the name of another Agency; or

(c) where the name of any such Agency is changed, by omitting the name of that Agency and substituting its new name.

(2)  [Section 6 Subsection (2) amended by No. 17 of 1996, Applied:14 May 1998] The Governor may, by order, amend Column 2 of Schedule 1 by inserting, opposite the name of an Agency, the title or other description of an office or by omitting or amending that title or other description.

(3)  The Governor may, by order, omit Schedule 1 and substitute a Schedule containing in Column 1 the names of Agencies and containing in Column 2 the titles or other descriptions of offices.

PART 2 - The Commissioner for Public Employment

7.   Appointment, &c., of Commissioner for Public Employment

(1)  Subject to this section, the Governor may appoint a person to be known as the Commissioner for Public Employment.

(2)  Subject to this Part, the Commissioner holds office for such term, not exceeding 5 years, as may be specified in the instrument of appointment and may from time to time be reappointed for a further term, not exceeding 5 years, as may be so specified.

(3)  A person who has attained the age of 65 years shall not be appointed or reappointed as Commissioner.

(4)  A person who is a member of a House of Parliament of the Commonwealth, or of a State or Territory of the Commonwealth, or a candidate for election as a Member of such House of Parliament, is disqualified from being appointed to the office of Commissioner, and if a person holding that office becomes a candidate for election as such a member, thereupon vacates office.

(5)  For the purposes of subsection (4) , a person becomes a candidate for election as a Member of a House of Parliament when nominated for that election in accordance with the law regulating the election.

(6)  The Commissioner shall not, without the permission of the Governor, hold any other office of profit or engage in any occupation for reward outside the duties of the Commissioner's office.

(7)  The Commissioner is entitled to such remuneration and allowances as the Governor determines, and holds office subject to such terms and conditions (if any) with respect to matters not provided for in this Act as are specified in the instrument of appointment.

(8)  [Section 7 Subsection (8) amended by No. 68 of 1994, s. 3 and Sched. 1 ]The Commissioner shall be deemed to be an employee for the purposes of the Retirement Benefits Act 1993 and the Long Service Leave (State Employees) Act 1994 .

(9)  If an employee is appointed to the office of Commissioner, the employee is entitled to retain all existing and accruing rights with respect to leave as if service in that office were a continuation of the employee's service as an employee.

(10)  Where a person referred to in subsection (9) ceases to hold the office of Commissioner and becomes an employee, the person's service in that office shall be regarded as service as an employee for the purposes of determining the person's rights as an employee.

(11)  A person who ceases to hold office as Commissioner by reason of the expiration of the term of office or resignation is, if the person has not attained the age of 65 years, entitled to be appointed, where, immediately before the appointment as Commissioner, the person was a permanent employee, to some position as a permanent employee in the State Service not lower in classification and salary than that which the person held immediately before the person's appointment as Commissioner.

8.   Vacation of office of Commissioner

(1)  A person holding the office of Commissioner shall be deemed to have vacated that office –

(a) on attaining the age of 65 years; or

(b) on resignation from office under subsection (2) ; or

(c) on removal from office in accordance with subsection (3) .

(2)  A person holding the office of Commissioner may at any time resign office by notice in writing delivered to the Governor.

(3)  The Governor may remove the Commissioner from office if the Governor receives resolutions from both Houses of Parliament requesting the Commissioner to be so removed.

(4)  Where the Governor is satisfied that the Commissioner –

(a) except by reason of temporary illness, is incapable of performing, or is inadequately performing, the functions of that office; or

(b) has become bankrupt, applied to take or has taken advantage of any law for the relief of bankrupt or insolvent debtors, compounded with creditors, or made an assignment of any part of the Commissioner's estate for their benefit; or

(c) has been convicted of a crime or an offence in Tasmania which is punishable by imprisonment for a term of 6 months or more, or has been convicted elsewhere than in Tasmania of a crime or an offence which, if committed in Tasmania, would be a crime or an offence so punishable; or

(d) has been guilty of misconduct in relation to the performance of the Commissioner's functions; or

(e) has contravened section 7 (6) –

the Governor may suspend the Commissioner from office.

(5)  Where the Commissioner has been suspended from office under subsection (4) , the Commissioner shall be restored to office unless –

(a) a statement of the grounds of the suspension is laid before each House of Parliament during the first 7 sitting days of that House following the suspension; and

(b) each House of Parliament, within 30 sitting days after that statement is so laid, passes a resolution requesting the Governor to remove that person from office.

(6)  Where the Commissioner is suspended from office under subsection (4) and each House of Parliament does not pass a resolution, within the period referred to in subsection (5) (b) , requesting the Governor to remove that person from office, the Commissioner shall be entitled to receive the Commissioner's full salary and allowances in respect of the period during which the Commissioner was suspended.

9.   Appointment of person to act as Commissioner

(1)  Where the person holding office as Commissioner –

(a) is absent from office through illness, leave or any other cause; or

(b) is suspended from office or is otherwise incapable of performing the functions of office; or

(c) dies or otherwise vacates office –

the Governor may appoint a person as Acting Commissioner during that absence, suspension or incapacity or, as the case may be, until the vacant office of Commissioner is filled, and the person appointed as Acting Commissioner shall perform the functions and exercise the powers of the Commissioner under this Act.

(2)  All things done or omitted to be done by the Acting Commissioner shall be as valid, and have the same consequences, as if they had been done or omitted to be done by the Commissioner.

(3)  A person shall not be appointed as Acting Commissioner for a period exceeding 12 months.

(4)  A person who has attained the age of 65 years shall not be appointed as Acting Commissioner.

(5)  A person who is a member of a House of Parliament of the Commonwealth, or of a State or Territory of the Commonwealth, or a candidate for election as a Member of such House of Parliament, is disqualified from being appointed to the office of Acting Commissioner, and if a person holding that office becomes a candidate for election as such a Member, that person thereupon vacates that office.

(6)  For the purposes of subsection (5) , a person becomes a candidate for election as a Member of a House of Parliament when nominated for that election in accordance with the law regulating the election.

(7)  The Acting Commissioner is entitled to such remuneration and allowances as the Governor determines and holds office subject to such terms and conditions of service as the Governor determines.

(8)  The Governor may at any time terminate the appointment of a person as Acting Commissioner.

(9)  The Acting Commissioner may at any time resign office by notice in writing delivered to the Governor.

10.   Functions of Commissioner

(1)  [Section 10 Subsection (1) amended by No. 19 of 1991, s. 5 ]In addition to such other functions as are by this Act or any other Act imposed on the Commissioner, the Commissioner has the following functions:

(a) to take such steps as the Commissioner considers necessary to promote, uphold and ensure adherence to the merit principle in the selection of persons or employees to fill vacant positions in the State Service, the appointment of persons as permanent employees, the promotion of permanent employees to vacant positions in the State Service or the employment of employees in the State Service;

(b) to determine practices and procedures relating to the recruitment of persons to the State Service, the appointment of persons as permanent employees, the promotion of permanent employees and the employment, transfer, secondment, redeployment and discipline of employees and to the creation and abolition of positions in Agencies pursuant to section 33 (2) ;

(c) to review and make recommendations to the Minister on the level of permanent employment and temporary employment in the State Service or in any Agency;

(d) to consult, where the Commissioner considers it appropriate, with the Secretary in relation to the development and application of personnel practices and procedures in the State Service;

(e) to consult with the Secretary and other Heads of Agencies in relation to the application of the public employment policies of the Government of the State;

(f) to determine educational qualifications and other requirements for employment in specified positions or classes of positions in the State Service;

(g) to determine practices and procedures in relation to equal employment opportunity programs and to monitor and evaluate those programs.

(2)  The Commissioner shall keep a record of all permanent employees showing in respect of each employee –

(a) the employee's age and the date of appointment; and

(b) the position the employee holds and the classification of that position; and

(c) the salary payable to the employee; and

(d) such other particulars (if any) as may be prescribed.

11.   Powers of Commissioner

(1)  The Commissioner may do all things necessary or convenient to be done for or in connection with or incidental to the performance of the Commissioner's functions under this Act.

(2)  Without limiting the generality of subsection (1) , in addition to any power conferred on the Commissioner by any other provision of this Act, the Commissioner may, for the purpose of carrying out the Commissioner's functions under this Act –

(a) conduct such inquiries, investigations or reviews as the Commissioner considers necessary for the purposes of this Act; and

(b) enter and remain, with such assistants as the Commissioner considers necessary, in any premises at which the functions or activities of an Agency are carried on; and

(c) summon any person whose evidence appears to be material to any determination of the Commissioner; and

(d) take evidence on oath or affirmation and, for that purpose, administer oaths and affirmations; and

(e) subject to subsection (3) , require any person to produce documents or records in the person's possession or subject to the person's control that relate to matters of administration for the purposes of this Act.

(3)  The regulations may prescribe documents or records or classes of documents or records that a person is not required to produce under subsection (2) (e) .

(4)  [Section 11 Subsection (4) amended by No. 18 of 1988, s. 27 and Sched. 1 ]An employee who neglects or fails, without reasonable cause, to attend in obedience to a summons under subsection (2) , to be sworn or make an affirmation, to answer relevant questions or to produce any relevant documents or records when required to do so under that subsection is guilty of an offence.

Penalty:  Fine not exceeding 5 penalty units.

(5)  [Section 11 Subsection (5) amended by No. 18 of 1988, s. 27 and Sched. 1 ]A person, not being an employee, who, after payment or tender to the person by the Commissioner of reasonable expenses, neglects or fails without reasonable cause to attend in obedience to a summons under subsection (2) , to be sworn or make an affirmation, to answer relevant questions or to produce any relevant documents or records when required to do so under that subsection is guilty of an offence.

Penalty:  Fine not exceeding 5 penalty units.

(6)  Nothing in this section shall be construed as compelling a person to answer a question or produce a document that may tend to incriminate the person.

12.   Employees to be made available to Commissioner

[Section 12 Amended by No. 5 of 1990, s. 3 and Sched. 1 ]The Commissioner may, with the approval of the Minister, make arrangements with the Secretary for such persons employed in the Department as the Commissioner considers necessary to be made available to the Commissioner to enable the Commissioner to perform the Commissioner's functions and exercise the Commissioner's powers.

13.   Employment Instructions

(1)  The Commissioner may issue Employment Instructions, which shall have effect according to their tenor unless they are inconsistent with or repugnant to other provisions of this Act.

(2)  Employment Instructions may relate to practices and procedures with respect to the selection, recruitment, appointment, promotion, transfer, secondment, redeployment and discipline of employees and to the creation and abolition of positions in Agencies pursuant to section 33 (2) .

(3)  [Section 13 Subsection (3) amended by No. 5 of 1990, s. 3 and Sched. 1 ]Employment Instructions may be issued under this section –

(a) so as to apply –

(i) generally or in a particular case or class of case or in particular cases or classes of cases; and

(ii) at all times or at a specified time or at specified times; and

(iii) throughout the State or in a specified part or specified parts of the State; and

(iv) throughout the State Service or in a specified Agency or Agencies; and

(b) so as to require a matter affected by them to be –

(i) in accordance with a specified standard or specified requirement; or

(ii) as approved by, or to the satisfaction of, a specified person or body or a specified class of person or body; and

(c) so as to confer on a specified person or body or a specified class of person or body a discretionary authority; and

(d) so as to provide that, in specified cases or a specified class of case or specified classes of cases, whether on specified conditions or unconditionally, persons or things of a class or classes of persons or things may be exempted from the Employment Instructions, either wholly or to such extent as is specified; and

(e) so as to –

(i) revoke earlier Employment Instructions in whole or in part; or

(ii) revoke earlier Employment Instructions in whole or in part, and substitute other Employment Instructions for those which have been revoked; or

(iii) vary earlier Employment Instructions.

(4)  In subsection (3) , specified means specified in the Employment Instructions.

(5)  Employment Instructions issued under this section are not statutory rules within the meaning of the Rules Publication Act 1953 .

14.   Delegation by Commissioner

(1)  The Commissioner may, by instrument in writing, delegate to the Head of an Agency, or, after consultation with the Head of an Agency, to any person employed in that Agency, the performance or exercise of such of the Commissioner's functions and powers under this Act (other than this power of delegation and the power conferred on the Commissioner under section 13 ) as may be performed or exercised in relation to that Agency and as are specified in the instrument of delegation.

(2)  The Commissioner may, by instrument in writing, delegate to any person specified in the instrument of delegation the performance or exercise of such of the Commissioner's functions and powers under this Act (other than this power of delegation and the power conferred on the Commissioner under section 13 ) as are specified in the instrument of delegation.

(3)  The Commissioner may, by instrument in writing, revoke wholly or in part or vary a delegation made under this section.

(4)  A function or power, the performance or exercise of which has been delegated under this section, may, while the delegation remains unrevoked, be performed or exercised from time to time in accordance with the terms of the delegation.

(5)  A delegation under this section may be made subject to such conditions or limitations as to the performance or exercise of any of the functions or powers delegated, or as to time or circumstance, as are specified in the instrument of delegation.

(6)  Notwithstanding any delegation under this section, the Commissioner may continue to perform or exercise all or any of the functions or powers delegated.

(7)  Any act or thing done by or to a delegate while acting in the exercise of a delegation under this section shall have the same force and effect as if the act or thing had been done by or to the Commissioner and shall be deemed to have been done by or to the Commissioner.

(8)  An instrument purporting to be signed by a delegate of the Commissioner in the capacity as such a delegate shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by the Commissioner and, until the contrary is proved, shall be deemed to be an instrument signed by a delegate of the Commissioner under this section.

(9)  If the Commissioner by whom a delegation is made dies, or ceases to hold, or is suspended from, office, that delegation shall be deemed to continue in force according to its tenor until it is revoked or varied under this section.

15.   Reports by Commissioner

(1)  The Commissioner shall, on or before 30 September in each year, if Parliament is sitting, and if Parliament is not sitting within 7 days after it assembles, transmit to both Houses of Parliament a report on the performance of the Commissioner's functions during the period of 12 months ending on 30 June in that year.

(2)  Without limiting the generality of subsection (1) , the report of the Commissioner may relate to any of the following matters:

(a) measures that the Commissioner considers should be adopted to promote the merit principle;

(b) cases in which the Commissioner has detected breaches of the merit principle;

(c) changes that have been made by the Commissioner during the period specified in the report in the performance of the Commissioner's functions under this Act.

(3)  The Commissioner may, at any time, submit to the Minister a report with respect to any matter arising out of the performance of the Commissioner's functions or the exercise of the Commissioner's powers under this Act.

(4)  The Minister may, by notice in writing, or either House of Parliament may, by resolution, request a report from the Commissioner on any matter arising out of the performance of, or the failure to perform, any of the Commissioner's functions under this Act or arising out of the exercise of, or the failure to exercise, any of the Commissioner's powers under this Act.

(5)  The Commissioner shall comply with any request from the Minister or from either House of Parliament for a report referred to in subsection (4) as soon as practicable after the receipt of the request.

PART 3 - [Part 3 Heading substituted by No. 5 of 1990, s. 3 and Sched. 1 ]Functions and Powers of Secretary

16.   

[Section 16 Repealed by No. 5 of 1990, s. 3 and Sched. 1 ].  .  .  .  .  .  .  .  

17.   

[Section 17 Repealed by No. 5 of 1990, s. 3 and Sched. 1 ].  .  .  .  .  .  .  .  

18.   Functions of Secretary

(1)  The functions of the Secretary are –

(a) to advise the Minister on and monitor the implementation of policy in respect of the staffing, administration and operation of the State Service; and

(b) to co-ordinate the management practices and procedures used in Agencies and to develop, where practicable, uniform standards for the State Service in administrative and personnel matters; and

(c) to develop uniform classification standards and procedures, where practicable, in relation to positions in the State Service, assist the Head of an Agency in the application of those standards and procedures, and where no such classification standards or procedures have been developed, to approve the assignment and variation of classifications by the Head of an Agency in relation to positions in that Agency; and

(d) to assist the Head of an Agency in the performance of the functions relating to management, having particular regard to matters relating to organizational structure, personnel development, personnel practices and the need for effective, efficient and economical operation of that Agency; and

(e) to assist the Head of an Agency in evaluating the performance of employees in that Agency; and

(f) to develop, after consultation with the Commissioner, recruitment programmes for the State Service; and

(g) to develop and co-ordinate training, education and development programmes in the State Service; and

(h) to collect, develop and maintain statistical records in respect of administrative and personnel matters relating to the State Service; and

(i) such other functions as are imposed by or under this Act.

(2)  The Secretary shall, when directed by the Minister under section 23 (1) (c) , perform or exercise, in relation to another Agency, such of the functions or powers, specified in this Act, of the Head of that other Agency as may be determined by the Minister.

(3)  The Secretary shall, when directed by the Minister under section 23 (1) (b) , conduct an inquiry, investigation or review to determine –

(a) whether or not the Head of an Agency is managing that Agency in an effective, efficient and economical manner; or

(b) whether or not the functions and activities of an Agency, part of an Agency, or more than one Agency, are being performed in an effective, efficient and economical manner.

19.   Powers of Secretary

(1)  In addition to any other power conferred on the Secretary by any other provision of this Act, the Secretary may –

(a) conduct such inquiries, investigations or reviews as the Secretary considers necessary for the purposes of this Act; and

(b) enter and remain, with such assistants as the Secretary considers necessary, in any premises at which the functions or activities of an Agency are carried on; and

(c) subject to subsection (2) , request the Head of an Agency to produce any documents or records concerning matters of administration which relate to the functions or activities of that Agency; and

(d) request the Head of an Agency or any person employed in that Agency to answer any question with respect to any matter relating to the functions or activities carried on by or in that Agency; and

(e) request the Head of an Agency or any person employed in that Agency whose evidence may appear to be material to the determination of an inquiry, investigation or review being conducted or made under this Act to provide evidence to such an inquiry, investigation or review; and

(f) inspect any such premises and any plant, equipment or article which appears to be kept on those premises for the purposes of, or in connection with, those functions or activities.

(2)  The regulations may prescribe documents or records or classes of documents or records that a person is not required to produce under subsection (1) (c) .

(3)  It is the duty of every person employed in an Agency to co-operate with and, so far as it is within the person's power to do so, to comply with any lawful request made by the Secretary, or by a person exercising any of the powers delegated pursuant to section 21 and, in particular, not to obstruct or hinder the Secretary or any such person in the exercise of any of the powers referred to in subsection (1) (b) or (f) .

(4)  [Section 19 Subsection (4) amended by No. 18 of 1988, s. 4 ]The Secretary may, with the approval of the Minister, for the purposes of performing the Secretary's functions or exercising the Secretary's powers under this Act –

(a) engage such consultants and other independent contractors as the Secretary considers necessary; and

(b) obtain assistance, information and advice from any person or organization including the board of management of a public hospital.

20.   Reports on inquiries under section 18 (3)

(1)  Where an inquiry, investigation or review is conducted under section 18 (3) the Secretary shall provide a report on the inquiry, investigation or review to the Minister and the Minister administering the relevant Agency and may include in that report such recommendations as the Secretary considers necessary.

(2)  Where the Minister receives a report under subsection (1) the Minister may take such action as the Minister thinks necessary.

21.   Delegation by Secretary

(1)  [Section 21 Subsection (1) amended by No. 17 of 1996, Applied:14 May 1998] The Secretary may, by instrument in writing, delegate to a person specified in the instrument the performance or exercise of such of the Secretary's functions and powers under this Act (other than this power of delegation) as are specified in the instrument of delegation.

(2)  The Secretary may, by instrument in writing, revoke wholly or in part or vary a delegation made under this section.

(3)  A function or power, the performance or exercise of which has been delegated under this section, may, while the delegation remains unrevoked, be performed or exercised from time to time in accordance with the terms of the delegation.

(4)  A delegation under this section may be made subject to such conditions or limitations as to the performance or exercise of any of the functions or powers delegated, or as to time or circumstance, as are specified in the instrument of delegation.

(5)  Notwithstanding any delegation under this section, the Secretary may continue to perform or exercise all or any of the functions or powers delegated.

(6)  Any act or thing done by or to a delegate while acting in the exercise of a delegation under this section shall have the same force and effect as if the act or thing had been done by or to the Secretary and shall be deemed to have been done by or to the Secretary.

(7)  An instrument purporting to be signed by a delegate of the Secretary in the capacity as such a delegate shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by the Secretary and, until the contrary is proved, shall be deemed to be an instrument signed by a delegate of the Secretary under this section.

(8)  If the Secretary by whom a delegation is made dies, or ceases to hold, or is suspended from, office, that delegation shall be deemed to continue in force according to its tenor until it is revoked or varied under this section.

22.   

[Section 22 Repealed by No. 5 of 1990, s. 3 and Sched. 1 ].  .  .  .  .  .  .  .  

PART 4 - Administration

23.   Powers of Minister

(1)  In addition to such other powers as may be conferred on the Minister under this Act, the Minister shall have power to –

(a) make determinations in relation to the administration of the State Service or an Agency; and

(b) direct the Secretary to conduct an inquiry, investigation or review to determine –

(i) whether or not the Head of an Agency is managing that Agency in an effective, efficient and economical manner; or

(ii) whether or not the functions and activities of an Agency, part of an Agency or more than one Agency are being performed in an effective, efficient and economical manner; and

(c) direct the Secretary to perform or exercise, in relation to another Agency, all or any of the functions or powers, specified in this Act, of the Head of that Agency.

(2)  [Section 23 Subsection (2) substituted by No. 5 of 1990, s. 3 and Sched. 1 ]Before exercising any powers under subsection (1) , the Minister shall consult with the Minister for the time being administering the relevant Agency.

(3)  [Section 23 Subsection (3) omitted by No. 5 of 1990, s. 3 and Sched. 1 ].  .  .  .  .  .  .  .  

24.   Establishment, &c., of Government departments and State authorities, &c., as Agencies for purposes of Act

[Section 24 Substituted by No. 4 of 1990, s. 10 and Sched. 2 ]

(1)  The Governor may, on the recommendation of the Minister, by order –

(a) establish, abolish or change the name of a Government department or State authority; or

(b) restructure Government departments and State authorities.

(2)  For the purpose of subsection (1) (b) , restructure includes –

(a) establishing, abolishing or changing the name of a part of a Government department or State authority; and

(b) amalgamating a Government department or State authority with another Government department or State authority; and

(c) amalgamating part or parts of a Government department or State authority with another Government department or State authority; and

(d) amalgamating part or parts of a Government department or State authority with part or parts of another Government department or State authority.

(3)  In subsections (1) and (2) , a reference to a State authority shall be read as a reference to that State authority in its capacity as an Agency for the purposes of this Act.

25.   Regulation of number of persons, &c., that may be employed in an Agency

(1)  The Governor, on the recommendation of the Minister, may, from time to time, by order, notwithstanding any other law of Tasmania, determine on such terms and conditions as may be specified in the order, the employment level for, or the number of persons that may be employed in, an Agency, being such level or number as the Governor determines to be appropriate for the effective, efficient and economical performance of the functions and activities of that Agency.

(2)  Before making a recommendation under subsection (1) in relation to an Agency, the Minister shall consult –

(a) the appropriate Minister; and

(b) if the appropriate Minister is not the Treasurer – the Treasurer.

(3)  The Governor may, on the recommendation to the Minister, from time to time by order vary or revoke a determination made under subsection (1) .

(4)  Before making a recommendation to vary or revoke a determination under subsection (3) , the Minister shall consult –

(a) the appropriate Minister; and

(b) if the appropriate Minister is not the Treasurer – the Treasurer.

(5)  Where an order is made under subsection (1) or (3) in relation to an Agency, the Minister shall forward a copy of the order to –

(a) the appropriate Minister; and

(b) if the appropriate Minister is not the Treasurer – the Treasurer; and

(c) the Head of that Agency.

(6)  Where an order made under subsection (1) or (3) is forwarded to the Head of an Agency pursuant to subsection (5) , the Head of that Agency shall ensure that no appointment is made in contravention of that determination specified in the order.

(7)  An order made under subsection (1) is not a statutory rule within the meaning of the Rules Publication Act 1953 .

26.   Administrative Instructions

(1)  The Minister may issue Administrative Instructions which relate to the administration of the State Service and which shall have effect according to their tenor unless they are inconsistent with or repugnant to other provisions of this Act.

(2)  [Section 26 Subsection (2) amended by No. 5 of 1990, s. 3 and Sched. 1 ]Administrative Instructions may be issued under this section –

(a) so as to apply –

(i) generally or in a particular case or class of case or in particular cases or classes of cases; and

(ii) at all times or at a specified time or at specified times; and

(iii) throughout the State or in a specified part or specified parts of the State; and

(iv) throughout the State Service or in a specified Agency or Agencies; and

(b) so as to require a matter affected by them to be –

(i) in accordance with a specified standard or specified requirement; or

(ii) as approved by, or to the satisfaction of, a specified person or body or a specified class of person or body; and

(c) so as to confer on a specified person or body or a specified class of person or body a discretionary authority; and

(d) so as to provide that, in specified cases or a specified class of case or specified classes of cases, whether on specified conditions or unconditionally, persons or things of a class or classes of persons or things may be exempted from the Administrative Instructions, either wholly or to such extent as is specified; and

(e) so as to –

(i) revoke earlier Administrative Instructions in whole or in part; or

(ii) revoke earlier Administrative Instructions in whole or in part, and substitute other Administrative Instructions for those which have been revoked; or

(iii) vary earlier Administrative Instructions.

(3)  In subsection (2) specified means specified in the Administrative Instructions.

(4)  Administrative Instructions issued under this section are not statutory rules within the meaning of the Rules Publication Act 1953 .

PART 5 - Heads of Agencies and Holders of Prescribed Offices

27.   Creation of certain offices of Head of Agency

(1)  Each office of Head of Agency specified in Column 2 of Division 1 of Part 1 of Schedule 1 shall be deemed to be created by virtue of this Act.

(2)  Where Column 2 of Division 1 of Part 1 of Schedule 1 is amended by the omission of the title or other description of an office, that office of Head of Agency shall be deemed to be abolished by virtue of this Act.

(3)  Where this Act is amended by amending the title or other description of an office of Head of Agency appearing in Column 2 of Division 1 of Part 1 of Schedule 1 , the title or other description of that office shall be deemed to be correspondingly amended by virtue of this Act.

28.   Heads of Agencies

The person holding the office specified in Column 2 of Schedule 1 opposite the name of an Agency in Column 1 of that Schedule shall, for the purposes of this Act, be the Head of that Agency.

29.   Appointment, &c., of certain Heads of Agencies

(1)  [Section 29 Subsection (1) amended by No. 5 of 1990, s. 3 and Sched. 1 ]Where a vacancy exists in any office which is specified in Column 2 of Division 1 of Part 1 of Schedule 1 , or in any other prescribed office, the Governor, on the recommendation of the Minister, may appoint a person to that office.

(2)  The provisions of Part 6 do not apply to the appointment of a person under this Part and the provisions of Parts 7 , 8 and 9 do not apply to a person appointed under this Part.

(3)  Subject to this Part, a person appointed under subsection (1) holds office for such term as may be specified in the instrument of appointment.

(4)  A person who has attained the age of 65 years shall not be appointed or reappointed to an office under this section.

(5)  A person who is a member of a House of Parliament of the Commonwealth, or of a State or Territory of the Commonwealth, or a candidate for election as a Member of such House of Parliament, is disqualified from being appointed to an office under subsection (1) , and if a person holding such an office becomes a candidate for election as such a member, the person thereupon vacates office.

(6)  For the purposes of subsection (5) , a person becomes a candidate for election as a Member of a House of Parliament when nominated for that election in accordance with the law regulating the election.

(7)  A person appointed under subsection (1) shall not, without the permission of the Governor, hold any other office of profit or engage in any occupation for reward outside the duties of the person's office.

(8)  A person appointed under subsection (1) is entitled to such remuneration and allowances as the Governor determines, and holds office subject to such terms and conditions (if any) with respect to matters not provided for in this Act as are specified in the instrument of appointment.

(9)  [Section 29 Subsection (9) amended by No. 68 of 1994, s. 3 and Sched. 1 ]A person appointed under subsection (1) shall be deemed to be an employee for the purposes of the Long Service Leave (State Employees) Act 1994 .

(10)  If an employee is appointed to an office under subsection (1) , the employee is entitled to retain all existing and accruing rights with respect to leave as if the employee's service in that office were a continuation of the employee's service as an employee.

(11)  Where a person referred to in subsection (10) ceases to hold the office to which the person was appointed under subsection (1) and becomes an employee, the person's service in that office shall be regarded as service as an employee for the purposes of determining the person's rights as an employee.

(12)  [Section 29 Subsection (12) amended by No. 68 of 1994, s. 3 and Sched. 1 ]A person appointed under subsection (1) who immediately before the person's appointment was an employee within the meaning of the Retirement Benefits Act 1993 may, within one month after that appointment, by notice in writing served on the Retirement Benefits Fund Board, elect to continue to be an employee for the purposes of that Act and, on making such an election, that person shall be deemed to be an employee within the meaning of that Act.

(13)  [Section 29 Subsection (13) substituted by No. 112 of 1985, s. 4 ][Section 29 Subsection (13) amended by No. 18 of 1988, s. 7 ][Section 29 Subsection (13) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 29 Subsection (13) amended by No. 60 of 1993, s. 5 ]A person who ceases to be the Head of an Agency or the holder of a prescribed office by reason of the expiration of the term of office or resignation or the term of office being terminated before the expiration of that term may –

(a) if the person has not attained the age of 65 years; and

(b) where, immediately before the first appointment as the Head of an Agency or the first appointment to a prescribed office, the person was a permanent employee and has continuously held an office of Head of an Agency, a prescribed office or a position as a contract employee –

elect, within 14 days of so ceasing to be the Head of an Agency or the holder of a prescribed office, to be re-appointed as a permanent employee in accordance with section 50 .

(14)  [Section 29 Subsection (14) inserted by No. 112 of 1985, s. 4 ]An election under subsection (13) shall be by notice in writing served on the Commissioner.

30.   Vacation of office of Head of Agency and holder of prescribed office

[Section 30 Subsection (3) amended by No. 28 of 1990, s. 70 and Sched. 3 ]

(1)  [Section 30 Subsection (1) amended by No. 60 of 1993, s. 6 ]A person appointed to an office under section 29 shall be deemed to have vacated that office –

(a) on attaining the age of 65 years; or

(b) on resignation from office under subsection (2) ; or

(ba) on the termination of his or her appointment under subsection (2A) ; or

(c) on removal from office in accordance with subsection (3) .

(2)  A person appointed to an office under section 29 may at any time resign office by notice in writing delivered to the Governor.

(2A)  [Section 30 Subsection (2A) inserted by No. 60 of 1993, s. 6 ]The Governor may terminate the appointment of a person holding office under section 29 in accordance with the provisions specified in that person's instrument of appointment.

(3)  [Section 30 Subsection (3) amended by No. 61 of 1985, s. 6 ]Where the Governor is satisfied that a person holding office under section 29 –

(a) except by reason of temporary illness, is incapable of performing, is inadequately performing, or is not performing in a satisfactory manner, the functions of that office; or

(b) has become bankrupt, applied to take or has taken advantage of any law for the relief of bankrupt or insolvent debtors, compounded with creditors or made an assignment of any part of the person's estate for their benefit; or

(c) in the case of a person who is the Head of an Agency, is not managing that Agency in an effective, efficient and economic manner; or

(d) has wilfully and without good cause refused, disobeyed or ignored a direction lawfully given by the Minister or the Minister for the time being administering the Agency in which the person is employed; or

(e) in the case of a person who is the Head of an Agency, has wilfully and without good cause failed to comply with an Employment Instruction or an Administrative Instruction that relates to that person or that Agency or a provision of this Act that relates to that person; or

(ea) in the case of a person who is the Head of an Agency, has wilfully and without good cause failed to comply with any Treasurer's Instructions, within the meaning of the Financial Management and Audit Act 1990 , that relate to that person as a Head of Agency; or

(f) in the case of a person who is the Head of an Agency, has wilfully and without good cause failed to comply with a direction issued by the Commissioner under section 35 (3) or 36 (5) or given by the Commissioner for Review under section 68 (17) (b) ; or

(g) has been convicted of a crime or an offence in Tasmania which is punishable by imprisonment for a term of 6 months or more, or has been convicted elsewhere than in Tasmania of a crime or an offence which, if committed in Tasmania, would be a crime or an offence so punishable; or

(h) has been guilty of misconduct in relation to the performance of the person's functions; or

(i) has contravened section 29 (7) –

the Governor may remove that person from that office.

31.   Transfer of certain Heads of Agencies

(1)  [Section 31 Subsection (1) amended by No. 5 of 1990, s. 3 and Sched. 1 ]The Governor may, on the recommendation of the Minister, transfer a person appointed to an office specified in Column 2 of Division 1 of Part 1 of Schedule 1 to any other office specified in of Column 2 of Division 1 of Part 1 of Schedule 1 .

(2)  A person transferred under subsection (1) shall receive a salary not less than the salary received immediately before that transfer.

32.   Accountability of Heads of Agencies

The Head of an Agency shall be responsible to the appropriate Minister for the performance of the Head's functions under this Act in relation to that Agency.

33.   Functions and powers of Heads of Agencies

[Section 33 Subsection (1) amended by No. 19 of 1991, s. 6 ]

(1)  [Section 33 Subsection (1) amended by No. 61 of 1985, s. 7 ]Subject to any Employment Instructions and Administrative Instructions issued under this Act, the functions of the Head of an Agency are –

(a) to devise organizational structures so as to ensure that the Agency is operated as effectively, efficiently and economically as is practicable; and

(b) to assign a classification to each position in that Agency in accordance with the nature and duties of that position and to vary such a classification –

(i) in accordance with award requirements; and

(ii) in accordance with classification standards and procedures determined by the Secretary or, where no such standards or procedures have been determined, with the approval of the Secretary –

within the limits of the amount that has been allocated or is otherwise available to that Agency for the payment of salaries of employees in that Agency; and

(c) to assign functions to each employee and position within that Agency; and

(d) to ensure that the services of employees in that Agency are used as effectively, efficiently and economically as is practicable; and

(e) to evaluate the performance of employees in that Agency to ensure that the functions of positions in the Agency are performed both effectively and efficiently; and

(ea) to develop and implement equal employment opportunity programs in accordance with practices and procedures determined by the Commissioner; and

(f) to assist employees in that Agency to undertake such training, education and development programmes as are necessary to ensure the effective and efficient performance of the functions of the positions held by them; and

(g) such other functions as are imposed on the Head by or under this Act.

(2)  Subject to any Employment Instructions and Administrative Instructions issued under this Act, the Head of an Agency may create and abolish positions in that Agency within such limits as are consistent with a determination for the time being in force under section 25 and within the amount that has been allocated or is otherwise available to that Agency for the payment of salaries of employees in that Agency and may alter the title of any position in that Agency.

(3)  [Section 33 Subsection (3) amended by No. 61 of 1985, s. 7 ]The Head of an Agency appointed under this Part shall comply with –

(a) any Employment Instructions or Administrative Instructions issued under the provisions of this Act that relate to that Head or that Agency; and

(b) any direction issued by the Commissioner under section 35 (3) or 36 (5) or given by the Commissioner for Review under section 68 (17) (b) .

(4)  [Section 33 Subsection (4) amended by No. 61 of 1985, s. 7 ]Where the Head of an Agency varies the classification of a position under subsection (1) (b) or at the direction of the Commissioner for Review pursuant to an appeal under section 66 (1) (c) and that position is occupied by a permanent employee at the time of the variation, that position shall immediately become vacant and shall be filled in accordance with section 35 .

(5)  [Section 33 Subsection (5) inserted by No. 61 of 1985, s. 7 ]Where a position has become vacant under subsection (4) , the person who occupied that position immediately before it became vacant shall continue to perform the duties of the position until it is filled in accordance with section 35 .

(5A)  [Section 33 Subsection (5A) inserted by No. 18 of 1988, s. 8 ]The Head of an Agency may, with the prior written consent of the employee concerned and with the approval of the Commissioner, declare a position held by the employee in that Agency to be vacant.

(6)  [Section 33 Subsection (6) inserted by No. 61 of 1985, s. 7 ]The Head of an Agency may, with the approval of the Minister, make standing orders for the purposes of the administration and operation of the Agency.

(7)  [Section 33 Subsection (7) inserted by No. 61 of 1985, s. 7 ]Any standing order made by the Head of an Agency, without the approval of the Minister, is of no effect.

33A.   Delegation by Head of Agency

[Section 33A Inserted by No. 61 of 1985, s. 8 ]

(1)  [Section 33A Subsection (1) amended by No. 4 of 1990, s. 10 and Sched. 2 ]The Head of an Agency may, by instrument in writing, delegate to a person specified in the instrument the performance or exercise of such of the functions and powers under this Act (other than this power of delegation and the power of appointment or promotion in respect of positions in that Agency delegated under section 34 (2) ) or any other Act as are specified in the instrument of delegation.

(2)  The Head of an Agency may, by instrument in writing, revoke wholly or in part or vary a delegation made under this section.

(3)  A function or power, the performance or exercise of which has been delegated under this section, may, while the delegation remains unrevoked, be performed or exercised from time to time in accordance with the terms of the delegation.

(4)  A delegation under this section may be made subject to such conditions or limitations as to the performance or exercise of any of the functions or powers delegated, or as to time or circumstance, as are specified in the instrument of delegation.

(5)  Notwithstanding any delegation made under this section, the Head of an Agency may continue to perform or exercise all or any of the functions or powers delegated.

(6)  Any act or thing done by or to a delegate while acting in the exercise of a delegation under this section shall have the same force and effect as if the act or thing had been done by or to the Head of an Agency making the delegation and shall be deemed to have been done by or to the Head of the Agency.

(7)  An instrument purporting to be signed by a delegate of the Head of an Agency in the capacity as such a delegate shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by the Head of the Agency and, until the contrary is proved, shall be deemed to be an instrument signed by a delegate of the Head of the Agency under this section.

(8)  If the Head of an Agency by whom a delegation is made dies, or ceases to hold, or is suspended from, office, that delegation shall be deemed to continue in force according to its tenor until it is revoked or varied under this section.

(9)  [Section 33A Subsection (9) amended by No. 4 of 1990, s. 10 and Sched. 2 ]In this section, a reference to the Head of an Agency shall be read as a reference to that Head in the capacity as Head of an Agency, the holder of a statutory office or in any other capacity.

33AB.   Annual Reports by Heads of Agencies

[Section 33AB Inserted by No. 4 of 1990, s. 10 and Sched. 2 ]

(1)  The Head of an Agency shall, in each year, submit to the appropriate Minister a report, in a form approved by the Minister after consultation with the Treasurer, for the period of 12 months that ended on the last preceding 30 June (or such other period of 12 months as may be prescribed) relating to –

(a) the performance of the functions and the exercise of the powers of the Head of Agency under this Act; and

(b) the performance of the functions and the exercise of the powers of –

(i) any statutory office the holder of which is employed in or attached to that Agency; or

(ii) any statutory authority attached to that Agency; and

(c) such other matters as may be prescribed.

(1A)  [Section 33AB Subsection (1A) inserted by No. 28 of 1990, s. 70 and Sched. 3 ]A report required to be submitted under subsection (1) shall be combined in a single document with a report required to be made under section 27 (1) of the Financial Management and Audit Act 1990 so as to form an annual report.

(2)  Notwithstanding subsection (1) , the report of a Head of an Agency shall not contain any matter that is required under any other enactment to be submitted to a Minister by the holder of a statutory office employed in or attached to that Agency or by any statutory authority attached to that Agency.

(3)  In each year, the appropriate Minister shall, on or before 30 November or such other date as may be prescribed, cause a copy of the report referred to in subsection (1) to be laid on the table of each House of Parliament.

(4)  [Section 33AB Subsection (4) amended by No. 28 of 1990, s. 70 and Sched. 3 ]A date prescribed for the purposes of subsection (3) shall be determined after consultation with the Minister responsible for the administration of the Financial Management and Audit Act 1990 and shall be a date not later than 5 months after the end of the period of 12 months prescribed under subsection (1) .

(5)  If the appropriate Minister is unable to comply with subsection (3) by reason of the fact that either House of Parliament is not sitting, the appropriate Minister shall, on 30 November or such other date as is prescribed under subsection (3) , as the case may require –

(a) forward a copy of the report referred to in subsection (1) to the Clerk of the Legislative Council and the Clerk of the House of Assembly; and

(b) make the report available to the public –

and shall, within the next 7 sitting days of that House, cause a copy of the report to be laid before that House.

(6)  If 30 November or such other date as is prescribed under subsection (3) is a Sunday or any day which is a bank holiday or a public holiday throughout the State, which days are in this section referred to as excluded days, subsection (5) shall be deemed to be complied with if a copy of the report is forwarded to the Clerk of the Legislative Council and the Clerk of the House of Assembly, and is made available to the public, on the next day afterwards, not being an excluded day.

(7)  The regulations may prescribe different periods of 12 months for the purposes of subsection (1) in relation to different Heads of Agencies, different Agencies and different parts of Agencies.

PART 6 - Appointments, Promotions, Retirements and Transfers

33B.   Interpretation for purposes of Part 6

[Section 33B Inserted by No. 18 of 1988, s. 9 ][Section 33B Amended by No. 60 of 1993, s. 7 ]For the purposes of Part 6 , a reference to the promotion of a permanent employee includes a reference to the transfer of a permanent employee to another position otherwise than in accordance with section 42 , 45 , 49 or 50 .

34.   Appointments, &c., in the State Service

(1)  Any appointment of a person as a permanent employee, or promotion of a permanent employee, to a position in the State Service –

(a) shall be made in accordance with the merit principle and Employment Instructions issued by the Commissioner; and

(b) shall be made by the Minister on behalf of the Crown.

(2)  [Section 34 Subsection (2) amended by No. 61 of 1985, s. 9 ]The Minister may, by instrument in writing, delegate to the Head of an Agency and to such other persons nominated by the Head of an Agency all or part of the Minister's power of appointment or promotion in respect of positions in that Agency on such terms and conditions as the Minister may determine.

(2A)  [Section 34 Subsection (2A) inserted by No. 18 of 1988, s. 10 ]The Minister may, by instrument in writing, revoke wholly or in part or vary a delegation made under this section.

(3)  The power of appointment or promotion delegated to the Head of an Agency or other person when exercised by the Head of that Agency or that other person shall for all purposes be deemed to have been exercised by the Minister.

(4)  Nothing in subsection (1) shall authorize the filling of a vacancy in a position in an Agency where the filling of such a vacancy would result in expenditure of a greater amount than has been allocated or is otherwise available to that Agency for the payment of salaries and wages of employees in that Agency.

(5)  [Section 34 Subsection (5) inserted by No. 61 of 1985, s. 9 ]Where a delegation has been made by the Minister under subsection (2) to a person nominated by the Head of an Agency, a reference to the Head of an Agency in sections 35 and 36 shall be read as a reference to the person to whom such a delegation has been made.

35.   Filling of vacancies in positions

(1)  [Section 35 Subsection (1) amended by No. 60 of 1993, s. 8 ]A vacancy in a position in the State Service may be filled by –

(a) the appointment of a person as a permanent employee or the promotion of a permanent employee in accordance with section 36 ; or

(b) the secondment of a person or a permanent employee in accordance with section 43 or 44 ; or

(c) the transfer of a permanent employee in accordance with section 42 , 45 , 49 , 50 , 52 , 55 or 58 ; or

(d) the employment of a person as a temporary employee in accordance with section 38 .

(2)  Where the Head of an Agency requires a vacancy in a position in that Agency to be filled by the appointment of a person as a permanent employee or promotion of a permanent employee, the Head of that Agency may, unless the position is one in respect of which a direction has been issued by the Commissioner in accordance with subsection (3) , fill that vacancy in accordance with section 36 .

(3)  The Commissioner may issue a direction to the Head of an Agency declaring that a vacancy in a position or positions or in a class of positions in that Agency specified in the direction shall not be filled by a permanent employee unless the Head requiring the vacancy to be filled has first notified the Commissioner of that vacancy and has been informed in accordance with subsection (4) (c) that the Head may fill that vacancy.

(4)  [Section 35 Subsection (4) amended by No. 60 of 1993, s. 8 ]Within 7 days of the receipt of a notification under subsection (3) in respect of a vacancy in a position in an Agency, the Commissioner shall inform the Head of that Agency whether –

(a) it is the Commissioner's intention to transfer a permanent employee whose name is registered on the Redeployment Register to fill that vacancy; or

(b) it is the Commissioner's intention to transfer a permanent employee to that vacancy as a consequence of –

(i) a recommendation under section 52 (10) (h) or under section 55 (13) (e) ; or

(ii) a request under section 58 (4) (c) or (6) (c) ; or

(c) the vacancy may be filled by the appointment of a person as a permanent employee or the promotion of a permanent employee in the manner specified in section 36 .

36.   Procedure for filling vacancies in positions

(1)  Where a vacancy in a position is to be filled by the appointment of a person as a permanent employee or the promotion of a permanent employee, the Head of the Agency in which the vacancy exists shall –

(a) advertise, in such manner as may be specified in the Employment Instructions, for applications from persons and employees who wish to be appointed or promoted to that vacancy as the case may be; or

(b) with the approval of the Commissioner, select, without advertising the vacancy, a permanent employee who satisfies the requirements specified in section 37 (1) and whom the Head considers to be the most capable of filling the vacancy.

(2)  Where the Head has advertised for applications pursuant to subsection (1) (a) , the Head shall select, from the applicants for that vacancy who satisfy the requirements specified in section 37 (1) , the person or permanent employee whom the Head considers to be the most capable of filling the vacancy.

(3)  The Head of the Agency making the selection to fill a vacancy under subsection (1) (b) or subsection (2) shall ensure that the merit principle and Employment Instructions are complied with.

(4)  Where the Commissioner has not issued a direction under subsection (5) , the Head of the Agency making the selection to fill a vacancy under subsection (2) shall, by notice in writing served on all permanent employees who were applicants for that vacancy, inform those employees of the selection.

(5)  The Commissioner may, in any particular case, for the purpose of determining whether or not the Head of an Agency has made the selection under subsection (2) in accordance with the merit principle and Employment Instructions, issue a direction to the Head of that Agency requiring the Head to produce such evidence relevant to the making of that selection as may be specified in the direction.

(6)  Where the Commissioner, after considering the evidence produced by the Head of the Agency pursuant to a direction issued under subsection (5) , is satisfied that the selection made under subsection (2) has been made in accordance with the merit principle and Employment Instructions, the Commissioner shall, within 7 days of the receipt of such evidence, so inform the Head of that Agency and the Head shall, by notice in writing served on all permanent employees who were applicants for that vacancy, inform those employees of the selection.

(7)  Where the Commissioner, after considering the evidence produced by the Head of the Agency pursuant to a direction issued under subsection (5) , is not satisfied that the selection made under subsection (2) has been made in accordance with the merit principle and Employment Instructions, the Commissioner shall, within 7 days of the receipt of such evidence, direct the Head of that Agency –

(a) to make a selection in accordance with the merit principle and the Employment Instructions from the applicants for the vacancy; or

(b) to re-advertise the vacancy.

(8)  [Section 36 Subsection (8) amended by No. 61 of 1985, s. 10 ]Where the Head of the Agency making the selection under subsection (2) is satisfied that –

(a) all permanent employees who applied for the vacancy have waived their right to appeal against that selection or the period within which those permanent employees may appeal against that selection has expired and no such appeal has been made; or

(b) if such an appeal has been made –

(i) the appeal has been heard and determined and the selection of the Head of the Agency has been confirmed; or

(ii) the appeal has been withdrawn –

the Head shall notify the Minister accordingly and the person or permanent employee selected by the Head of the Agency shall be appointed as a permanent employee or promoted, as the case may be, to that vacancy.

(9)  Where the Head has selected a permanent employee to fill a vacancy pursuant to subsection (1) (b) , the Head shall arrange for the selection to be advertised in such manner as may be specified in the Employment Instructions.

(10)  Where the Head of the Agency making the selection under subsection (1) (b) is satisfied that –

(a) all permanent employees have waived their right to appeal against that selection or the period within which those permanent employees may appeal against that selection has expired and no such appeal has been made; or

(b) if such an appeal has been made –

(i) the appeal has been heard and determined and the selection of the Head of the Agency has been confirmed; or

(ii) the appeal has been withdrawn –

the Head shall notify the Minister accordingly and the permanent employee selected by the Head of the Agency shall be promoted to that vacancy.

(11)  Where a permanent employee has appealed to the Commissioner for Review against the selection under subsection (1) (b) or (2) by the Head of an Agency of a person or permanent employee to fill a vacancy in a position in that Agency and the Commissioner for Review has upheld the appeal of that employee, the Head of that Agency shall notify the Minister accordingly, and that employee shall be promoted to that vacancy.

37.   Conditions for appointment

(1)  A person shall not be appointed as a permanent employee or a permanent employee shall not be promoted to a vacancy in a position in the State Service unless he or she possesses such educational qualifications and meets such other requirements (including health and physical fitness) as are determined by the Commissioner as being required for that vacancy.

(2)  Except as is otherwise prescribed by the Commissioner in Employment Instructions, the appointment of a person as a permanent employee shall be on probation for a period not exceeding 6 months commencing on the day on which the person commences duties in pursuance of the appointment.

(3)  At the expiration of the period of probation, the Minister, on the recommendation of the Head of the Agency concerned, shall –

(a) confirm the appointment; or

(b) terminate the appointment; or

(c) direct that the employee on probation continue on probation for a further period (not exceeding 6 months) as the Commissioner determines.

(4)  The Minister, on the recommendation of the Head of the Agency concerned, shall at the expiration of the further period of probation under subsection (3) (c) –

(a) confirm the appointment; or

(b) terminate the appointment.

(5)  The Minister, on the recommendation of the Head of the Agency concerned, may at any time during the period of probation terminate the appointment.

(6)  Where the Minister confirms or terminates the appointment of a permanent employee pursuant to subsection (3) , (4) or (5) or directs that an employee on probation continue on probation for a further period pursuant to subsection (3) (c) , the Minister shall notify that employee in writing of the decision.

(7)  [Section 37 Subsection (7) inserted by No. 18 of 1988, s. 11 ]The Minister may, by instrument in writing –

(a) delegate to a person specified in the instrument the function of confirming appointments under this section; and

(b) delegate to the Head of an Agency the other functions and powers under this section.

(8)  [Section 37 Subsection (8) inserted by No. 18 of 1988, s. 11 ]The Minister may, by instrument in writing, revoke wholly or in part or vary a delegation made under subsection (7) .

(9)  [Section 37 Subsection (9) inserted by No. 18 of 1988, s. 11 ]A delegation under subsection (7) may be made subject to such conditions or limitations as to the performance or exercise of any of the functions or powers delegated, or as to time or circumstance, as are specified in the instrument of delegation.

(10)  [Section 37 Subsection (10) inserted by No. 18 of 1988, s. 11 ]Any act or thing done by a delegate while acting in the exercise of a delegation under subsection (7) shall have the same force and effect as if the act or thing had been done by the Minister and shall be deemed to have been done by the Minister.

(11)  [Section 37 Subsection (11) inserted by No. 18 of 1988, s. 11 ]An instrument purporting to be signed by a delegate of the Minister in the capacity as such a delegate shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by the Minister and, until the contrary is proved, shall be deemed to be an instrument signed by a delegate of the Minister under subsection (7) .

38.   Temporary employment

(1)  [Section 38 Subsection (1) substituted by No. 59 of 1992, s. 65 ]A person may be employed on a full-time, part-time, hourly, daily, weekly or other basis in a temporary capacity to undertake such work as may be required for a specified period of time or otherwise on –

(a) a general contract of service; or

(b) a special contract of service –

by the Minister on behalf of the Crown in accordance with Employment Instructions issued by the Commissioner.

(1A)  [Section 38 Subsection (1A) inserted by No. 59 of 1992, s. 65 ]A special contract of service referred to in subsection (1) may only be used to employ persons in positions determined by the Commissioner to be of a senior executive or equivalent specialist nature.

(2)  [Section 38 Subsection (2) amended by No. 18 of 1988, s. 12 ]The Minister may, by instrument in writing delegate to the Head of an Agency and to such other persons nominated by the Head of an Agency all or part of the power to employ persons in a temporary capacity in that Agency on such terms and conditions as the Minister may determine and to terminate the employment of persons so employed.

(2A)  [Section 38 Subsection (2A) inserted by No. 18 of 1988, s. 12 ]The Minister may, by instrument in writing, revoke wholly or in part or vary a delegation made under this section.

(3)  [Section 38 Subsection (3) amended by No. 18 of 1988, s. 12 ]The power delegated to the Head of an Agency or other person under subsection (2) shall for all purposes, when exercised by the Head of Agency or that other person, be deemed to have been exercised by the Minister.

(4)  Nothing in subsection (1) shall authorize the employment of a person in a temporary capacity where that employment would result in expenditure of a greater amount than has been allocated or is otherwise available to that Agency for the purpose of salaries and wages of employees in that Agency.

(5)  The Commissioner may keep a register of persons available for temporary employment.

(6)  The terms and conditions of employment of persons employed under this section other than contract employees shall be those specified in an award relating to persons engaged in the work for which they are employed, or, if no such award is in force, shall be determined by the Minister.

(6A)  [Section 38 Subsection (6A) inserted by No. 18 of 1988, s. 12 ]If a permanent employee is appointed as a contract employee, the employee is entitled to retain all existing and accruing rights with respect to leave as if the employee's service as a contract employee were a continuation of the employee's service as a permanent employee.

(7)  Subject to any award relating to persons engaged in the work for which they are employed, the Minister, the Head of a relevant Agency or other person referred to in subsection (2) , as the case may be, may terminate the employment of persons employed under this section.

(8)  [Section 38 Subsection (8) substituted by No. 112 of 1985, s. 5 ][Section 38 Subsection (8) amended by No. 18 of 1988, s. 12 ][Section 38 Subsection (8) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 38 Subsection (8) amended by No. 60 of 1993, s. 9 ]A contract employee whose contract of service is terminated before the expiration of the terms of the contract or is not renewed may –

(a) if the employee has not attained the age of 65 years; and

(b) where, immediately before the first appointment as a contract employee, the employee was a permanent employee and has continuously held a position as a contract employee, an office of Head of an Agency or a prescribed office –

elect, within 14 days of the termination or expiration of the contract of service, to be re-appointed as a permanent employee in accordance with section 50 .

(8A)  [Section 38 Subsection (8A) inserted by No. 112 of 1985, s. 5 ]An election under subsection (8) shall be by notice in writing served on the Commissioner.

(8B)  [Section 38 Subsection (8B) inserted by No. 18 of 1988, s. 12 ]Without limiting the operation of subsection (7) , a contract employee, who immediately before the appointment as a contract employee was a permanent employee, is subject to the provisions of Part 9 as if the employee were a permanent employee.

(9)  The Commissioner may, after consultation with the Head of an Agency, recommend to the Minister that a person who is employed as a temporary employee in a position in that Agency be appointed as a permanent employee.

(10)  The Commissioner shall not make a recommendation under subsection (9) unless the Commissioner has first obtained the consent of the employee concerned to the making of that recommendation.

(11)  The Minister may, after considering the recommendation of the Commissioner referred to in subsection (9) , appoint the person referred to in the recommendation as a permanent employee.

39.   Examinations

The Commissioner may, from time to time, for the purposes of this Part –

(a) hold such examinations as the Commissioner thinks fit; and

(b) determine the conditions of entry for any such examinations; and

(c) appoint examiners for the purpose of any such examinations; and

(d) require other persons to hold examinations, to comply with conditions of entry determined by the Commissioner in respect of any such examinations held by them and to appoint examiners for the purpose of any such examinations.

40.   Retirement of permanent employees on or after attaining minimum retiring age

(1)  A permanent employee is entitled to retire from employment at any time after the employee attains the minimum retiring age.

(2)  In subsection (1) , minimum retiring age, in relation to a permanent employee, means –

(a) in the case of a permanent employee who is of a class of employees specified in the regulations in respect of whom a minimum retiring age is prescribed – the age so prescribed; or

(b) in the case of any other permanent employee – the age of 55 years.

41.   Compulsory retirement

(1)  A permanent employee is, by virtue of this subsection, required to retire from employment at the conclusion of the day on which the employee attains the maximum retiring age.

(1A)  [Section 41 Subsection (1A) inserted by No. 18 of 1988, s. 13 ]The Head of an Agency may, on the basis of medical evidence relating to a permanent employee employed in that Agency, recommend to the Minister that the employee be retired and the Minister may, if of the opinion on the basis of that medical evidence that the employee is unfit to continue to perform the duties assigned to the employee's position, retire the employee.

(2)  In this section, maximum retiring age, in relation to a permanent employee, means –

(a) in the case of a permanent employee who is of a class of employees specified in the regulations in respect of whom a maximum retiring age is prescribed – the age so prescribed; or

(b) in the case of any other permanent employee – the age of 65 years.

42.   Transfer of employees

[Section 42 Amended by No. 60 of 1993, s. 10 ]

(1)  [Section 42 Subsection (1) amended by No. 60 of 1993, s. 10 ]Where 2 employees holding positions having a similar salary employed in the same Agency request the Head of the Agency for a reciprocal transfer, whether for a fixed term or otherwise, the Head of the Agency may effect such a reciprocal transfer.

(2)  [Section 42 Subsection (2) amended by No. 60 of 1993, s. 10 ]The Commissioner may, upon receiving a request from the Heads of 2 Agencies, and with the written consent of the 2 employees concerned, being employees holding positions having a similar salary, effect a reciprocal transfer of those employees, either for a fixed term or otherwise.

(3)  [Section 42 Subsection (3) amended by No. 60 of 1993, s. 10 ]The Head of an Agency may, on the application of an employee or otherwise, transfer an employee employed in that Agency to another position having a similar salary in that Agency, the duties of which the Head of the Agency considers the employee is capable of performing or is competent or qualified to perform.

(3A)  [Section 42 Subsection (3A) inserted by No. 18 of 1988, s. 14 ]The Head of an Agency may, with the written consent of an employee employed in that Agency, transfer the employee to another position having a lower salary in that Agency if the Head of the Agency considers that the employee is capable of performing, or is competent or qualified to perform, the duties attached to that position.

(4)  [Section 42 Subsection (4) substituted by No. 60 of 1993, s. 10 ]Subject to subsection (4A) , the Minister may transfer an employee from a position in an Agency to a vacant position having a similar salary in another Agency.

(4A)  [Section 42 Subsection (4A) inserted by No. 60 of 1993, s. 10 ]The Minister may not transfer an employee from a position in an Agency to a vacant position in another Agency having a lower salary unless the employee has consented in writing to such a transfer.

(5)  [Section 42 Subsection (5) substituted by No. 60 of 1993, s. 10 ]In transferring an employee under subsection (4) , the Minister must –

(a) have regard to the knowledge, skills, qualifications and experience of the employee; and

(b) be satisfied that the employee can reasonably be required to perform the duties of the position.

(5A)  [Section 42 Subsection (5A) inserted by No. 60 of 1993, s. 10 ]An employee who is transferred under subsection (4) is to be paid, for a period of 12 months from the day on which the employee is transferred, a salary not less than the salary which the employee was paid in respect of the position to which the employee was appointed as a permanent employee before being so transferred.

(5B)  [Section 42 Subsection (5B) inserted by No. 60 of 1993, s. 10 ]After the expiration of the 12 month period referred to in subsection (5A) , the employee is to be paid the salary assigned to the classification in respect of the position to which the employee has been transferred.

(5C)  [Section 42 Subsection (5C) inserted by No. 60 of 1993, s. 10 ]The Minister may delegate the power to transfer an employee from a position in an Agency to a vacant position in another Agency.

(6)  [Section 42 Subsection (6) amended by No. 60 of 1993, s. 10 ]The power conferred on the Head of an Agency or the Minister under this section shall be construed as including a power to transfer an employee from one locality to any other locality.

(7)  [Section 42 Subsection (7) amended by No. 60 of 1993, s. 10 ]An employee who is transferred from the position held by the employee to another position in the State Service, or from one locality to another locality, pursuant to this section, shall not refuse to commence the duties in the position or locality to which the employee is so transferred in accordance with such directions as may be given by the Head of the Agency in which the employee is employed or by the Minister.

(8)  For the purpose of subsections (1) and (2) , reciprocal transfer means a transfer involving 2 employees whereby each employee is transferred to the position in the State Service held by that other employee immediately before the transfer.

PART 7 - Secondment and Redeployment of Permanent Employees, &c.

43.   Secondment of permanent employees within the State Service

(1)  The Head of an Agency may, with the approval of the Commissioner, enter into an arrangement with the Head of any other Agency for a permanent employee employed in that other Agency to be made available to perform the duties of a position in the first-mentioned Agency on terms and conditions of service no less favourable to that employee than the terms and conditions of service that would, but for the arrangement, be applicable to that employee as a permanent employee employed in the other Agency.

(1A)  [Section 43 Subsection (1A) inserted by No. 18 of 1988, s. 15 ]The Head of an Agency may, with the approval of the Commissioner, enter into an arrangement with the Head of any other Agency for a permanent employee employed in that other Agency to be made available to perform the duties of a position in the first-mentioned Agency on terms and conditions, less favourable to that employee than the terms and conditions of service that would, but for the arrangement, be applicable to that employee as a permanent employee employed in the other Agency.

(2)  [Section 43 Subsection (2) amended by No. 18 of 1988, s. 15 ]An arrangement under subsection (1) or (1A) shall not be entered into so as to have effect for a period exceeding 3 years, but such an arrangement (including a renewed arrangement) may be renewed for a further period not exceeding 12 months from the date on which it would otherwise have ceased to have effect and shall, if not further renewed, cease to have effect at the end of that further period.

(3)  [Section 43 Subsection (3) amended by No. 18 of 1988, s. 15 ]An arrangement entered into under subsection (1) or (1A) under which the services of a permanent employee are made available, or a renewal of such an arrangement, is not binding on that employee unless that employee has, before the arrangement or renewal took effect, concurred in writing with the arrangement or renewal in so far as it affects that employee personally.

(4)  [Section 43 Subsection (4) amended by No. 17 of 1996, Applied:14 May 1998] [Section 43 Subsection (4) amended by No. 18 of 1988, s. 15 ]Where a permanent employee employed in an Agency is, pursuant to an arrangement under subsection (1) or (1A) , made available to perform the duties of a position in another Agency, that employee is subject to the control and direction of the Head of that other Agency.

(5)  [Section 43 Subsection (5) amended by No. 18 of 1988, s. 15 ]With the approval of the Commissioner, an arrangement under subsection (1) or (1A) may, at any time, be terminated and, with the concurrence of the permanent employee to whom the arrangement relates, the terms or conditions of the arrangement may, subject to subsection (2) , be varied at any time.

(6)  Where a permanent employee employed in an Agency is, pursuant to an arrangement under subsection (1) , made available to perform the duties of a position in another Agency, that employee shall, during the period of the arrangement, be entitled to receive all entitlements, including salary and increments, that employee would have been entitled to receive if that employee had continued to perform the duties of the position that that employee held immediately before the arrangement was entered into.

44.   Arrangements relating to secondment of persons

(1)  Subject to this section, the Commissioner –

(a) may, from time to time, if the Commissioner considers it to be in the public interest to do so, enter into an agreement or arrangement with an authority or an employer not specified in Schedule 1 for the secondment of a person employed by that authority or employer to perform any work or services for the purposes of, or the duties of any position in, an Agency; and

(b) may do all things necessary to give effect to such an agreement or arrangement, including adjusting from time to time any matters arising under the agreement or arrangement that appear to the Commissioner to require adjustment.

(2)  Subject to this section, the Commissioner –

(a) may, from time to time, if the Commissioner considers it to be in the public interest to do so, enter into an agreement or arrangement with an authority or an employer not specified in Schedule 1 for the secondment of a permanent employee to perform any work or services for, or the duties of any position in the service of, that authority or employer; and

(b) may do all things necessary to give effect to such an agreement or arrangement, including adjusting from time to time any matters under the agreement or arrangement that appear to the Commissioner to require adjustment.

(3)  An agreement or arrangement under subsection (2) may provide for such matters as the parties to the agreement or arrangement consider appropriate, but, without limiting the generality of those words, such an agreement or arrangement may –

(a) determine or provide for the rate of payment (if any) to be made to the Treasurer in respect of the work, services or duties that is or are to be performed by the permanent employee proposed to be seconded under the agreement or arrangement; and

(b) subject to any relevant award, prescribe the terms and conditions under which that permanent employee is to be engaged during the period of the secondment.

(4)  Any sum of money received by the Treasurer pursuant to subsection (3) (a) shall be paid into the Consolidated Fund and the Treasurer may reimburse that sum to the Agency in which the permanent employee seconded under an agreement or arrangement under subsection (2) is employed.

(5)  Where a permanent employee is seconded under an agreement or arrangement under subsection (2) , the authority or employer concerned is, unless the agreement or arrangement otherwise provides, responsible for the control and direction of that employee in relation to the performance of the work or services for which, or the duties of the position to which, that employee is seconded.

(6)  The Commissioner shall not enter into an agreement or arrangement under this section in relation to a position in an Agency or in relation to a permanent employee employed in an Agency unless the Head of that Agency concerned has consented to that agreement or arrangement.

(7)  An agreement or arrangement under subsection (2) for the secondment of a person or the renewal of such an agreement or arrangement is binding if, but only if, the person has, before the agreement or arrangement or renewal takes effect, concurred in writing with the agreement or arrangement or renewal in so far as it affects the person personally.

(8)  Where a permanent employee is or is to be seconded under an agreement or arrangement entered into under subsection (2) , the Commissioner shall, in that agreement or arrangement or by a separate agreement or arrangement, make arrangements for determining in respect of that employee the respective shares of the Treasurer and the authority or employer concerned with respect to any pension, retiring allowance or allowance to dependants which may become payable under any law in relation to that employee.

(9)  The fact that a person in relation to whom an agreement or arrangement has been entered into under subsection (1) is employed in or by an authority or by an employer not specified in Schedule 1 does not of itself disqualify the person from performing the duties of a position in an Agency.

(10)  An agreement or arrangement under this section shall not be entered into so as to have effect for a period exceeding 3 years, but such an agreement or arrangement (including a renewed agreement or arrangement) may be renewed for a further period not exceeding 12 months from the date on which it would otherwise have ceased to have effect and shall, if not further renewed, cease to have effect at the end of that further period.

(11)  [Section 44 Subsection (11) amended by No. 68 of 1994, s. 3 and Sched. 1 ]Where an agreement or arrangement is entered into under the provisions of this section and the person who is to perform the work, services or duties mentioned in those provisions is an employee within the meaning of the Retirement Benefits Act 1993 or the Long Service Leave (State Employees) Act 1994 , the period during which the person performs that work or those services or duties shall be deemed to be service for the purposes of those Acts.

(12)  The parties to an agreement or arrangement under subsection (2) for the secondment of a person may at any time terminate the agreement or arrangement and, with the concurrence in writing of that person, may, subject to subsection (10) , vary the terms or conditions of the agreement or arrangement.

(13)  Where a permanent employee is seconded under an agreement or arrangement under subsection (2) , that employee shall, during the period of the secondment, continue to receive all entitlements, including salary and increments to salary, that that employee would have been entitled to receive if that employee had not been so seconded.

45.   Provisions relating to position of seconded employee

(1)  Before the Commissioner enters into an agreement or arrangement under section 43 (1) or 44 (2) in respect of the secondment of a permanent employee the Commissioner shall, after consultation with the Head of the Agency in which the employee is employed, notify that employee in writing whether the position held by that employee –

(a) is to be declared vacant and filled on a permanent basis; or

(b) is to be abolished; or

(c) is not to be declared vacant or is not to be abolished.

(2)  Where a permanent employee in respect of whom an agreement or arrangement is entered into under section 43 (1) or 44 (2) is notified by the Commissioner that the position held by that employee is not to be declared vacant or is not to be abolished, that employee shall be entitled to re-commence duties in that position on completion of the period of secondment.

(3)  [Section 45 Subsection (3) substituted by No. 60 of 1993, s. 11 ]Upon the cessation of an agreement or arrangement under section 43 (1) or 44 (2) , the Head of the Agency in which the employee was employed immediately before the agreement or arrangement was entered into must, if the position held by the employee immediately before the agreement or arrangement was entered into has been declared vacant or abolished, transfer the employee to a vacant position in that Agency having a similar salary to the position held by the employee immediately before the agreement or arrangement was entered into or, with the employee's consent, to a position having a lower salary, being a position the duties of which the Head considers the employee is capable of performing or is competent or qualified to perform.

(4)  [Section 45 Subsection (4) inserted by No. 60 of 1993, s. 11 ]An employee is not entitled to appeal to the Commissioner for Review against his or her transfer or the transfer of another employee under subsection (3) .

46.   

[Section 46 Repealed by No. 60 of 1993, s. 12 ].  .  .  .  .  .  .  .  

47.   Declaration of permanent employee to be surplus to requirements of Agency

[Section 47 Substituted by No. 60 of 1993, s. 13 ]

(1)  Where the Head of an Agency considers that, because of a prescribed reason, a permanent employee employed in that Agency has become surplus to the requirements of that Agency, the Head of the Agency may, subject to subsection (2) , make a declaration in writing that the employee is surplus to the requirements of the Agency.

(2)  An employee must not be declared surplus to the requirements of an Agency unless the Head of the Agency is unable to immediately transfer the employee to another position in that Agency in accordance with section 42 .

(3)  The Head of an Agency must –

(a) state in a declaration under subsection (1) the prescribed reason for which the Head considers the employee to be surplus to the requirements of that Agency; and

(b) as soon as practicable after making such a declaration, serve a copy of the declaration on the employee.

(4)  Where the Head of an Agency has served a copy of a declaration on an employee, the Head must, subject to subsection (5) , request the Commissioner to transfer the employee in accordance with section 49 .

(5)  The Head of an Agency must not take action under subsection (4) unless –

(a) the employee has waived the right to appeal under section 66 (1B) or the period within which the employee may appeal under section 66 (1B) has expired and no such appeal has been made; or

(b) if such an appeal has been made –

(i) the appeal has been heard and determined and the appeal has been dismissed; or

(ii) the appeal has been withdrawn.

(6)  Where the Head of an Agency has received written notification from the Commissioner of the Commissioner's inability to transfer the employee in accordance with section 49 , the Head must serve a notice on the employee calling on the employee to resign or retire from the State Service within the period specified in the notice.

(7)  Where the Head of an Agency has served a notice on an employee under subsection (6) , the Head may, before the expiration of the period specified in the notice, revoke the notice by notice in writing served on the employee.

(8)  If an employee who is served with a notice under subsection (6) does not resign or retire within the period specified in the notice, the employment of the employee in the State Service is terminated 7 days after the expiration of the period specified in the notice.

(9)  For the purposes of this section, prescribed reason means any one of the following reasons:

(a) an employee is included in a class of employees employed in an Agency which comprises a greater number of employees than is necessary for the effective, efficient or economical operation of that Agency;

(b) there has been an alteration in the structural organization of an Agency which has resulted in the duties undertaken by an employee in that Agency being no longer necessary or required;

(c) there has been an alteration in the functions performed by an Agency which has resulted in the duties undertaken by an employee in that Agency being no longer necessary or required;

(d) there has been an alteration in the duties of a position in an Agency which has resulted in the classification or salary of an employee who holds that position being no longer appropriate for that position;

(e) the classification of the position held by an employee has been varied pursuant to section 33 (1) (b) and the employee has not been promoted to the vacancy created as a result of the variation of the classification;

(f) an employee's position has been abolished.

48.   Redeployment Register

[Section 48 Substituted by No. 60 of 1993, s. 13 ]The Commissioner must keep a register to be called the "Redeployment Register" in which the Commissioner must register the names of permanent employees in respect of whom the Commissioner has received a request under section 47 .

49.   Commissioner to endeavour to transfer certain employees

[Section 49 Substituted by No. 60 of 1993, s. 13 ]

(1)  Where the Commissioner has received a request under section 47 , the Commissioner must take such action as the Commissioner considers reasonable and practicable to identify a vacant position in the State Service to which the employee could be transferred.

(2)  The Commissioner may transfer the employee from a position in an Agency to a vacant position in another Agency.

(3)  In transferring an employee under subsection (2) , the Commissioner must –

(a) have regard to the knowledge, skills, qualifications and experience of the employee; and

(b) be satisfied that the employee can reasonably be required to perform the duties of the position.

(4)  An employee who is transferred under subsection (2) is to be paid for a period of 12 months from the day on which the employee is transferred a salary not less than the salary which the employee was paid in respect of the position to which the employee was appointed as a permanent employee before being so transferred.

(5)  After the expiration of the 12 month period referred to in subsection (4) , the employee is to be paid the salary assigned to the classification in respect of the position to which the employee has been transferred.

(6)  The power conferred on the Commissioner under this section is to be construed as including a power to transfer an employee from one locality to another locality.

(7)  An employee must not refuse to commence duties in the position or locality to which the employee is transferred by the Commissioner.

(8)  If the Commissioner is unable to transfer an employee under subsection (2) within 12 months of the receipt of a request from the Head of an Agency under section 47 (4) , the Commissioner must notify in writing the Head of the Agency of the Commissioner's inability to do so.

(9)  An employee is not entitled to appeal to the Commissioner for Review against the transfer of another employee, or the failure of the Commissioner to transfer the employee, under subsection (2) .

50.   Re-appointment as permanent employee

[Section 50 Substituted by No. 60 of 1993, s. 14 ]

(1)  An employee or a person who elects under section 29 (13) or section 38 (8) to be re-appointed as a permanent employee is deemed to be a permanent employee in the Agency in which the employee or person was appointed or employed immediately before the employee or person so elected.

(2)  An employee or a person who is deemed to be a permanent employee under subsection (1) is entitled to be paid a salary equal to the salary which the employee or person would have been entitled to be paid if the employee or person had remained at the classification assigned to the position which the employee or person held immediately before becoming the Head of an Agency, the holder of a prescribed office or a contract employee.

(3)  The Head of the Agency in which the employee or person is deemed to be employed must transfer the employee to a vacant position in that Agency, being a position the duties of which the Head considers the employee is capable of performing or is competent or qualified to perform.

(4)  An employee is not entitled to appeal to the Commissioner for Review against the transfer of another employee under subsection (3) .

51.   Appointment of former invalidity pensioners

[Section 51 Substituted by No. 60 of 1993, s. 15 ]

(1)  [Section 51 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]Where the Commissioner receives a report from the Retirement Benefits Board stating that the Board is of the opinion that the health of an invalidity pensioner under the Retirement Benefits Act 1993 is so restored as to enable that person to perform the duties of any office or position that is available and which that person may be required to accept, the Commissioner may take such action as the Commissioner considers reasonable and practicable to identify a vacant position in the State Service which, in the Commissioner's opinion, the person would be capable of performing or would be competent or qualified to perform.

(2)  The Commissioner may appoint a person referred to in subsection (1) to a vacant position in the State Service identified under subsection (1) .

(3)  An employee is not entitled to appeal to the Commissioner for Review against the appointment of a person under subsection (2) .

(4)  Part 6 does not apply to an appointment under subsection (2) .

PART 8 - Inability of permanent employees to discharge duties

52.   Inability of permanent employees to discharge duties

[Section 52 Subsection (1) amended by No. 5 of 1990, s. 3 and Sched. 1 ]

(1)  [Section 52 Subsection (1) amended by No. 18 of 1988, s. 17 ]Where the Head of an Agency is of the opinion that an inquiry is warranted to determine whether or not a permanent employee in that Agency –

(a) is fit to discharge, or capable of discharging, the duties of the employee's position efficiently; or

(b) is discharging the duties of that position efficiently or satisfactorily, or in the best interests of the State; or

(c) is qualified for the efficient and satisfactory performance of the duties of that position; or

(d) is temperamentally suitable to perform the duties of that position; or

(e) is medically fit to discharge the duties of that position –

the Head of the Agency shall recommend to the Commissioner that a person be appointed to conduct such an inquiry and shall notify the employee of such a recommendation to the Commissioner.

(2)  Where a recommendation is made under subsection (1) for the appointment of a person to conduct an inquiry referred to in that subsection in relation to a permanent employee, the Commissioner may appoint a person whom the Commissioner considers to be appropriately qualified to conduct that inquiry.

(2A)  [Section 52 Subsection (2A) inserted by No. 18 of 1988, s. 17 ]The Commissioner shall advise the permanent employee concerned whether or not the Commissioner intends to appoint a person to conduct an inquiry referred to in subsection (1) .

(3)  The person conducting an inquiry referred to in subsection (1) may adjourn proceedings of the inquiry from time to time and from place to place and may determine the inquiry notwithstanding that the permanent employee in respect of whom the inquiry is held has failed to appear at the time and place fixed for conducting the inquiry or the time and place to which the inquiry is adjourned under this subsection.

(4)  The person conducting an inquiry referred to in subsection (1) shall ensure that the principles of natural justice are complied with.

(5)  In the course of an inquiry referred to in subsection (1) , the person conducting the inquiry may direct the permanent employee in respect of whom the inquiry is held to submit to an examination by a legally-qualified medical practitioner who may be selected by that employee from a panel of not less than 5 legally-qualified medical practitioners nominated by the Commissioner for that purpose.

(6)  Where a permanent employee refuses to comply with a direction given under subsection (5) , the person conducting the inquiry shall notify the Head of the Agency in which that employee is employed of the refusal of that employee to comply with such a direction, and the Head of the Agency, upon receipt of such a notification, shall issue a notice calling on that employee to resign or retire from the State Service within such period as may be specified in the notice.

(7)  If a permanent employee who is called on to resign or retire from the State Service under subsection (6) does not resign or retire within the period specified in the notice referred to in that subsection, the Head of the Agency in which that employee is employed shall recommend to the Minister that that employee be dismissed from the State Service.

(8)  Upon receipt of a recommendation under subsection (7) that a permanent employee be dismissed from the State Service, the Minister may dismiss that employee from the State Service.

(9)  [Section 52 Subsection (9) substituted by No. 18 of 1988, s. 17 ]The person conducting an inquiry referred to in subsection (1) in relation to a permanent employee –

(a) shall notify the Head of the Agency in which the employee is employed of the findings of the inquiry and shall make such recommendations to the Head of the Agency with respect to the employee as the person considers necessary; and

(b) shall advise the Commissioner of the findings of the inquiry and of any recommendations made to the Head of the Agency with respect to the employee; and

(c) shall by notice in writing served on that employee, notify the employee of the findings of the inquiry.

(10)  [Section 52 Subsection (10) amended by No. 5 of 1990, s. 3 and Sched. 1 ]If in consequence of an inquiry under subsection (1) in respect of a permanent employee, the Head of the Agency in which that employee is employed is notified under subsection (9) that the employee –

(a) is unfit to discharge, or incapable of discharging, the duties of the employee's position efficiently; or

(b) is not discharging the duties of that position efficiently or satisfactorily, or in the best interests of the State; or

(c) is not qualified for the efficient and satisfactory performance of the duties of that position; or

(d) is not temperamentally suitable to perform the duties of that position; or

(da) is medically unfit to discharge the duties of that position –

the Head of the Agency may –

(e) vary the duties of the permanent employee as the circumstances may require (whether or not the classification of the position held by that employee will be reduced as a result); or

(f) reduce the salary of that employee within the range determined by the classification of the position held by the employee; or

(g) transfer that employee to another position within that Agency having the same or a lower classification or salary; or

(h) recommend to the Commissioner that that employee be transferred to a position in another Agency having the same or a lower classification or salary; or

(i) issue a notice calling on that employee to resign or retire from the State Service within a period specified in the notice; or

(j) recommend to the Minister that that employee be dismissed from the State Service.

(10A)  [Section 52 Subsection (10A) inserted by No. 18 of 1988, s. 17 ]If the Head of an Agency proposes to take action under subsection (10) (e) , (f) , (g) , (i) or (j) in respect of a permanent employee, the Head shall notify the Commissioner of the intention to take such action.

(11)  Before taking action under subsection (10) in respect of a permanent employee, the Head of the Agency in which that employee is employed shall, by notice in writing served on the employee, notify that employee of the intention to take such action as is specified in the notice and of the grounds on which the Head intends to take such action.

(12)  The Head of an Agency shall not take action under subsection (10) unless –

(a) the permanent employee has waived the right to appeal against the intention of the Head of the Agency to take such action or the period within which that employee may appeal has expired and no such appeal has been made; or

(b) if such an appeal has been made –

(i) the appeal has been disallowed; or

(ii) the appeal has been withdrawn.

(13)  If a permanent employee who is called on to resign or retire from the State Service under subsection (10) (i) does not resign or retire within the period specified in the notice issued by the Head of the Agency in which that employee is employed, the Head of that Agency shall recommend to the Minister that the employee be dismissed from the State Service.

(13A)  [Section 52 Subsection (13A) inserted by No. 18 of 1988, s. 17 ]Where the Commissioner receives a recommendation from the Head of an Agency under subsection (10) (h) , the Commissioner may transfer the employee to whom the recommendation relates to a position in another Agency having the same or a lower classification or salary.

(13B)  [Section 52 Subsection (13B) inserted by No. 18 of 1988, s. 17 ]Where the Commissioner receives a recommendation from the Head of an Agency under subsection (10) (h) and is unable to transfer the employee to whom the recommendation relates to a position in another Agency, the Commissioner shall advise the Head of Agency of the inability to transfer the employee and request the Head to take such other action under subsection (10) as the Head considers necessary.

(14)  Upon the receipt of a recommendation from the Head of an Agency under subsection (10) (j) or (13) , the Minister may dismiss the permanent employee specified in the recommendation from the State Service.

53.   Suspension during inquiry under section 52

(1)  Where the Head of an Agency has recommended to the Commissioner that a person be appointed to conduct an inquiry under section 52 (1) in respect of a permanent employee, the Head of the Agency in which that employee is employed may at any time if of the opinion that it is desirable in the public interest to do so, suspend that employee with or without salary.

(2)  The Head of an Agency who has suspended a permanent employee under subsection (1) may remove the suspension at any time.

(3)  Where a permanent employee appeals against the intention of the Head of the Agency in which the employee is employed to take action under section 52 (10) and the appeal is allowed, any suspension imposed on the employee under this section terminates on the date on which the appeal is allowed.

(4)  The suspension of a permanent employee under this section, unless it is sooner terminated, terminates on action being taken by the Head of the Agency in which the employee is employed under section 52 (10) (e) , (f) or (g) or on the employee being transferred to a position in another Agency by the Commissioner pursuant to section 52 (10) (h) .

(5)  Where a permanent employee is suspended under this section without salary and the employee continues to be a permanent employee after the termination of the suspension, the employee shall be paid, in respect of the period of the suspension, the salary to which the employee would have been entitled if the suspension had not been imposed.

PART 9 - Discipline and Conduct

54.   Offences

[Section 54 Subsection (1) amended by No. 18 of 1988, s. 18 ]

(1)  [Section 54 Subsection (1) amended by No. 61 of 1985, s. 13 ]A permanent employee who –

(a) contravenes or fails to comply with any of the provisions of this Act or any standing orders issued by the Head of the Agency in which the employee is employed; or

(b) wilfully disregards or wilfully disobeys a lawful order or direction given to the employee as a permanent employee by a person having authority to give such an order or direction; or

(c) uses intoxicating liquor or drugs in a manner that results in inadequate performance of the employee's duties or improper conduct at the place of the employee's employment; or

(d) is negligent or careless in the discharge of any of the employee's duties or fails to perform those duties; or

(e) conducts himself or herself in an improper manner in the performance of those duties; or

(f) harasses or coerces another employee; or

(g) without good cause is absent from duty without leave; or

(h) without the permission of the Minister administering the Agency in which the employee is employed, makes any communication or contribution, directly or indirectly, and whether anonymously or otherwise, on any matter affecting the Agency in which the employee is employed, the position held by the employee or the employee's powers, functions and duties as an employee to any newspaper or publication of a like nature, other than –

(i) in the case of an employee who is a member of a professional health organization, a journal or publication relating to or relevant to the profession of that employee; or

(ii) in the case of an employee who is a member of an employee organization, a journal or publication issued by or under the authority of that employee organization; or

(i) without the permission of the Minister administering the Agency in which the employee is employed or otherwise than in the ordinary course of the employee's duties, divulges any information gained in the employment in the State Service otherwise than, in the case of an employee who is a member of a professional health organization, by way of a contribution to a journal or publication relating to or relevant to the profession of that employee –

is guilty of an offence and liable to be dealt with as provided in this Part.

(2)  Subject to section 58 , an offence committed by a permanent employee under any Act other than this Act in relation to the performance of the duties the employee is required to carry out as a permanent employee is an offence for the purposes of this Part, notwithstanding that the employee has not been charged in any court with, or convicted by any court of, that offence, and that employee is liable in respect of that offence to a penalty as provided in this Part.

(3)  [Section 54 Subsection (3) inserted by No. 18 of 1988, s. 18 ]Where a person provided information or made a statement or representation to the Head of an Agency or that Head's representative in relation to an application for appointment to a position in that Agency or at any stage in the selection process for appointment to that position and that information, statement or representation was to the person's knowledge false or misleading in a material particular, and that person was appointed to that position as a permanent employee, that person is guilty of an offence, notwithstanding that at the time the person committed the offence the person was not a permanent employee, and is liable to be dealt with as provided in this Part.

(4)  [Section 54 Subsection (4) inserted by No. 18 of 1988, s. 18 ]Where a permanent employee provided information or made a statement or representation to the Head of an Agency or that Head's representative in relation to an application for promotion or transfer to another position in the State Service or at any stage in the selection process for promotion or transfer to that position, and that information, statement or representation was to the employee's knowledge false or misleading in a material particular, the employee is guilty of an offence and is liable to be dealt with as provided in this Part.

(5)  [Section 54 Subsection (5) inserted by No. 18 of 1988, s. 18 ]A permanent employee who, in connection with the employee's employment, provides any information or makes any statement or representation (not being information, or a statement or representation, referred to in subsection (3) or (4) ) which is to the employee's knowledge false or misleading in a material particular is guilty of an offence and is liable to be dealt with as provided in this Part.

55.   Procedure in respect of offences

(1)  Where the Head of an Agency has reason to believe that a permanent employee employed in that Agency has committed an offence under section 54 , the Head of that Agency may, within the period of 6 months from the date on which the Head formed that belief, by notice in writing served on the employee, request the employee to furnish to the Head of the Agency, within the period of 7 days from the date on which the notice was served, a written explanation of the matters alleged to constitute the offence.

(2)  If, after considering any written explanation referred to in subsection (1) –

(a) the Head of the Agency is of the opinion that the permanent employee has committed an offence, the Head of the Agency may –

(i) cause the employee to be counselled; or

(ii) fine the employee an amount not exceeding an amount equivalent to the payment of one day's salary to the employee; or

(iii) charge the employee with having committed the offence –

and shall, by notice in writing served on the employee, notify the employee of the decision; or

(b) the Head of the Agency is of the opinion that the permanent employee has not committed an offence, the Head shall notify the employee accordingly.

(3)  If a permanent employee fails to comply with a request for a written explanation under subsection (1) within the period specified in that subsection, the Head of the Agency may, notwithstanding the failure of the employee to comply with such a request, exercise any of the powers specified in subsection (2) (a) (i) , (ii) or (iii) if of the opinion that the employee has committed the offence.

(4)  [Section 55 Subsection (4) amended by No. 61 of 1985, s. 14 ]If the Head of the Agency considers that the offence which the Head has reason to believe the employee has committed or with which the permanent employee is charged under subsection (2) (a) (iii) is of such a serious nature that the employee should not continue in the performance of the employee's duties, the Head of the Agency may suspend the employee, with or without salary, pending the determination of the charge.

(5)  [Section 55 Subsection (5) amended by No. 61 of 1985, s. 14 ]Where a permanent employee is charged with an offence under subsection (2) (a) (iii) the Head of the Agency in which the employee is employed shall request the Commissioner to appoint –

(a) a person or persons; or

(b) a body established in accordance with the regulations; or

(c) a prescribed body –

to conduct an inquiry into the charge without undue delay.

(6)  [Section 55 Subsection (6) substituted by No. 61 of 1985, s. 14 ]The Commissioner may, on receipt of a request from the Head of an Agency under subsection (5) appoint –

(a) a person or persons; or

(b) a body established in accordance with the regulations; or

(c) a prescribed body –

to conduct an inquiry into the charge referred to in that subsection.

(7)  [Section 55 Subsection (7) substituted by No. 18 of 1988, s. 19 ]Where the Commissioner has appointed a person to conduct an inquiry into a charge referred to in subsection (5) , the permanent employee charged with the offence shall be notified that a person has been appointed to conduct such an inquiry.

(7A)  [Section 55 Subsection (7A) inserted by No. 18 of 1988, s. 19 ]The person conducting an inquiry into a charge referred to in subsection (5) may determine whether or not a formal hearing is required.

(8)  [Section 55 Subsection (8) amended by No. 18 of 1988, s. 19 ]Where a permanent employee who is charged with an offence under subsection (2) (a) (iii) has furnished an explanation under subsection (1) in relation to the matters alleged to constitute the offence, the employee shall, if the employee so requests, be given the opportunity of making a further oral or written statement to the person holding the inquiry.

(9)  A permanent employee charged with an offence under subsection (2) (a) (iii) shall not be taken, by reason only of having failed to deny the truth of a matter alleged to constitute the offence, to have admitted the truth of that matter.

(10)  [Section 55 Subsection (10) amended by No. 18 of 1988, s. 19 ]Where a person conducting the inquiry has determined that a formal hearing is required in an inquiry into a charge referred to in subsection (5) , the person conducting the inquiry may adjourn proceedings of the inquiry from time to time and from place to place and may determine the inquiry notwithstanding that the permanent employee charged has failed to appear at the time and place fixed for the hearing or the time and place to which the hearing is adjourned under this subsection.

(11)  A person conducting an inquiry under this section shall ensure that the principles of natural justice are complied with.

(12)  [Section 55 Subsection (12) amended by No. 18 of 1988, s. 19 ]The person who held an inquiry into a charge concerning a permanent employee shall advise the Commissioner and the Head of the Agency in which the employee is employed of that person's findings and, by notice in writing served on the employee, advise the employee of the findings, and where satisfied that the employee has committed the offence or offences with which the employee is charged the person may make recommendations to the Head of the Agency with respect to the action that may be taken by the Head of the Agency in respect of that employee.

(13)  [Section 55 Subsection (13) amended by No. 18 of 1988, s. 19 ]The Head of the Agency in which the permanent employee charged is employed may, after considering the findings and recommendations submitted under subsection (12) , exercise one or more of the following powers:

(aa) cause the employee to be counselled;

(a) fine the employee an amount not exceeding an amount equivalent to the payment of 10 days' salary to that employee;

(b) vary the duties of the employee as the circumstances may require (whether or not the classification of the position held by the employee will be reduced as a result);

(c) reduce the salary of the employee within the range determined by the classification of the position held by that employee;

(d) transfer the employee to another position within that Agency having the same or a lower classification or salary;

(e) recommend to the Commissioner that the employee be transferred to a position in another Agency having the same or a lower classification or salary;

(f) issue a notice calling on the employee to resign or retire from the State Service within a period specified in the notice;

(g) recommend to the Minister that the employee be dismissed from the State Service.

(13A)  [Section 55 Subsection (13A) inserted by No. 18 of 1988, s. 19 ]Before exercising any of the powers under subsection (13) , the Head of the Agency shall, by notice in writing served on the permanent employee, notify the employee of the decision to take such action as is specified in the notice.

(13B)  [Section 55 Subsection (13B) inserted by No. 18 of 1988, s. 19 ]If the Head of an Agency proposes to take action under subsection (13) (a) , (b) , (c) , (d) , (f) or (g) in respect of a permanent employee, the Head shall notify the Commissioner of the intention to take such action.

(13C)  [Section 55 Subsection (13C) inserted by No. 18 of 1988, s. 19 ]Where the Commissioner receives a recommendation from the Head of an Agency under subsection (13) (e) , the Commissioner may transfer the permanent employee to whom the recommendation relates to a position in another Agency having the same or a lower classification or salary.

(13D)  [Section 55 Subsection (13D) inserted by No. 18 of 1988, s. 19 ]Where the Commissioner receives a recommendation from the Head of an Agency under subsection (13) (e) and is unable to transfer the employee to whom the recommendation relates to a position in another Agency, the Commissioner shall advise the Head of Agency of the inability to transfer the employee and request the Head to take such other action under subsection (13) as the Head considers necessary.

(14)  [Section 55 Subsection (14) omitted by No. 49 of 1993, s. 4 ].  .  .  .  .  .  .  .  

(15)  [Section 55 Subsection (15) omitted by No. 18 of 1988, s. 19 ].  .  .  .  .  .  .  .  

(16)  If a permanent employee who is called on to resign or retire from the State Service under subsection (13) (f) does not resign or retire within the period specified in the notice issued by the Head of the Agency in which the employee is employed, the Head of the Agency shall recommend to the Minister that the employee be dismissed from the State Service.

(17)  Upon receipt of a recommendation of the Head of an Agency under subsection (13) (g) or (16) , the Minister may dismiss the permanent employee specified in the recommendation from the State Service.

56.   Procedure of inquiry under section 55

(1)  A permanent employee charged with having committed an offence under section 55 (2) (a) (iii) and the Head of the Agency making the charge shall be deemed to be parties to proceedings before a person conducting an inquiry under that section.

(2)  [Section 56 Subsection (2) amended by No. 18 of 1988, s. 20 ]Where a person conducting an inquiry under section 55 determines that a formal hearing is required, each party to proceedings before the person conducting the inquiry is entitled to be present at the proceedings and is entitled to tender evidence to the person conducting the inquiry and to examine any other person who tenders evidence in those proceedings.

(3)  [Section 56 Subsection (3) substituted by No. 18 of 1988, s. 20 ]Where a person conducting an inquiry under section 55 determines that a formal hearing is required, each party to the proceedings before the person conducting the inquiry may nominate a person to appear as an advocate of that party at the hearing of the proceedings.

(4)  [Section 56 Subsection (4) substituted by No. 18 of 1988, s. 20 ]Where a person conducting an inquiry under section 55 determines that a formal hearing is required, a party to the proceedings before the person conducting the inquiry may, with the approval of that person, nominate a barrister or legal practitioner to appear in the proceedings as an advocate of that party and, where the person conducting an inquiry under section 55 has approved the nomination of a barrister or legal practitioner to appear as an advocate of a party to the proceedings, any other party to those proceedings may nominate a barrister or legal practitioner to appear at the hearing of the proceedings as an advocate of the other party.

(5)  A person nominated to appear as an advocate pursuant to subsection (3) or (4) in any proceedings before a person conducting an inquiry under section 55 may appear before the person conducting the inquiry at the proceedings and may on behalf of the party for which the person is appearing as advocate tender evidence to the person conducting the inquiry and examine any other person who tenders evidence in those proceedings.

(6)  A person conducting an inquiry under section 55 may –

(a) summon any person whose evidence appears to be material to the inquiry; and

(b) take evidence on oath or affirmation and, for that purpose, administer oaths and affirmations; and

(c) subject to subsection (7) , require any person to produce documents or records in that person's possession or subject to that person's control that relate to matters of administration which appear to the person conducting the inquiry to be material to the inquiry.

(7)  The regulations may prescribe documents or records or classes of documents or records that a person is not required to produce under subsection (6) (c) .

(8)  [Section 56 Subsection (8) amended by No. 18 of 1988, s. 27 and Sched. 1 ]A person who neglects or fails, without reasonable excuse, to attend in obedience to a summons under subsection (6) , to be sworn or make an affirmation, to answer relevant questions or to produce any relevant documents or records when required to do so under that subsection is guilty of an offence.

Penalty:  Fine not exceeding 5 penalty units.

(9)  Nothing in this section shall be construed as compelling a person to answer a question or produce a document that may tend to incriminate the person.

(10)  A person conducting an inquiry under section 55 –

(a) shall make a full and thorough investigation without regard to legal forms and solemnities; and

(b) may admit any evidence considered relevant notwithstanding that that evidence would not be admissible in a court of law; and

(c) shall observe the principles of natural justice.

(11)  The procedure of an inquiry conducted under section 55 is, subject to this Part, within the discretion of the person conducting the inquiry.

57.   Suspension

(1)  Where a permanent employee, who is charged with an offence under this Part and is suspended without salary, is found not to have committed that offence the employee shall receive the full salary and any allowances to which the employee was entitled in respect of the period during which the employee was suspended as a consequence of being so charged.

(2)  When a permanent employee who is suspended under this Part without salary admits, or is found guilty of, an offence and the suspension imposed on that employee is removed, the employee shall be entitled to receive the salary and allowances to which the employee was entitled in respect of the period during which the employee was suspended.

(3)  Where a charge against a permanent employee who has been suspended under this Part has been determined, the suspension imposed on the employee shall be removed, except where the employee is required to resign or retire or is dismissed.

(4)  The Head of the Agency at any time may remove the suspension imposed under this Part on a permanent employee employed in that Agency.

58.   Court proceedings against employees

(1)  Except as otherwise provided in this section, proceedings may not be taken under this Part in respect of an offence committed or alleged to have been committed by a permanent employee, if the employee has been charged in any court with, or convicted by any court of, that offence.

(2)  Where a permanent employee is charged in Tasmania with an offence punishable by imprisonment for a term exceeding 6 months or is charged outside Tasmania with an offence which would, if committed in Tasmania, be an offence punishable by imprisonment for a term exceeding 6 months, the Minister, if in the Minister's opinion the circumstances so require and having regard to the nature of the offence with which the employee is charged and the duties of the employee, may suspend the employee, with or without salary.

(2A)  [Section 58 Subsection (2A) inserted by No. 18 of 1988, s. 21 ]The Minister may, by instrument in writing, delegate to a person specified in the instrument the exercise of the power of suspension under subsection (2) .

(2B)  [Section 58 Subsection (2B) inserted by No. 18 of 1988, s. 21 ]The Minister may, by instrument in writing, revoke wholly or in part a delegation made under subsection (2A) .

(2C)  [Section 58 Subsection (2C) inserted by No. 18 of 1988, s. 21 ]A delegation under subsection (2A) may be made subject to such conditions or limitations as to the exercise of the power delegated, or as to time or circumstance, as are specified in the instrument of delegation.

(2D)  [Section 58 Subsection (2D) inserted by No. 18 of 1988, s. 21 ]Any act or thing done by a delegate while acting in the exercise of a delegation under subsection (2A) shall have the same force and effect as if the act or thing had been done by the Minister and shall be deemed to have been done by the Minister.

(2E)  [Section 58 Subsection (2E) inserted by No. 18 of 1988, s. 21 ]An instrument purporting to be signed by a delegate of the Minister in the capacity as such a delegate shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by the Minister and, until the contrary is proved, shall be deemed to be an instrument signed by a delegate of the Minister under subsection (2A) .

(3)  Where a permanent employee is convicted in Tasmania of an offence punishable by imprisonment for a term exceeding 6 months, or is convicted outside Tasmania of an offence which would, if committed in Tasmania, be an offence punishable by imprisonment for a term exceeding 6 months, the Minister may, if the Minister thinks it in the public interest to do so and having regard to the nature of the offence of which the employee is convicted and the duties of the employee –

(a) direct the Head of the Agency in which the employee is employed to vary the duties of the employee as the circumstances may require (whether or not the classification of the position held by the employee will be reduced as a result); or

(b) direct the Head of the Agency in which the employee is employed to reduce the salary of the employee within the range determined by the classification of the position held by that employee; or

(c) request the Commissioner to transfer the employee to another position in the State Service having the same or a lower classification or salary; or

(d) require the employee to resign or retire from the State Service and, if the employee fails or refuses to comply with such a requirement, dismiss the employee from the State Service; or

(e) dismiss the employee from the State Service.

(4)  Where a permanent employee is convicted in Tasmania of an offence punishable by imprisonment for a term not exceeding 6 months, or is convicted outside Tasmania of an offence which would, if committed in Tasmania, be an offence punishable by imprisonment for a term not exceeding 6 months, the Minister may, if the Minister thinks it in the public interest to do so and having regard to the nature of the offence of which the employee is convicted and the duties of the employee –

(a) direct the Head of the Agency in which the employee is employed to vary the duties of the employee as the circumstances may require (whether or not the classification of the position held by the employee will be reduced as a result); or

(b) direct the Head of the Agency in which the employee is employed to reduce the salary of the employee within the range determined by the classification of the position held by that employee; or

(c) request the Commissioner to transfer the employee to another position in the State Service having the same or a lower classification or salary.

(5)  Notwithstanding subsection (4) , where –

(a) a permanent employee is charged before a court of summary jurisdiction in Tasmania with an offence punishable by that court and the court thinks that the charge is proved but, without proceeding to conviction, dismisses the complaint or makes a probation order under section 7 (1) of the Probation of Offenders Act 1973 ; or

(b) a permanent employee has been convicted on indictment in Tasmania or under the provisions of section 63 of the Justices Act 1959 of an offence punishable with imprisonment and the court makes a probation order under section 7 (2) of the Probation of Offenders Act 1973 –

then –

(c) the dismissal of the complaint or the making of a probation order without proceeding to conviction; or

(d) the making of a probation order after conviction –

shall, for the purposes of this section, be deemed to be an adverse finding by that court against the employee.

(6)  Where an adverse finding is made by a court against a permanent employee, the Minister may, if the Minister thinks it in the public interest to do so and having regard to the nature of the offence and the duties of the employee –

(a) direct the Head of the Agency in which the employee is employed to vary the duties of the employee as the circumstances may require (whether or not the classification of the position held by the employee will be reduced as a result); or

(b) direct the Head of the Agency in which the employee is employed to reduce the salary of the employee within the range determined by the classification of the position held by that employee; or

(c) request the Commissioner to transfer the employee to another position in the State Service having the same or a lower classification or salary.

(7)  Where a permanent employee has been suspended under section 55 (4) in respect of a charge for an offence and the proceedings on that charge are prevented from being taken, or further proceeded with, by reason of the making of such a charge as is referred to in subsection (1) of this section that suspension shall, for the purposes of this Act, be deemed to have been imposed under this section in respect of that charge.

59.   Payment of fines

(1)  Where a fine is imposed on a permanent employee under this Part, the employee shall pay the amount of the fine to the Treasurer in such manner and within such period as may be agreed between the employee and the Treasurer or, where no agreement is reached between the employee and the Treasurer, in such manner and within such period as the Treasurer may determine, and where the employee fails to make a payment in accordance with the agreement or as determined by the Treasurer, as the case may be, the amount of the fine unpaid may be recovered by the Treasurer in a court of competent jurisdiction as a debt due to the Crown.

(2)  Where any fine or part of any fine remains unpaid when the permanent employee liable to pay the fine has ceased to be an employee, the amount of the fine so unpaid may be recovered by the Treasurer in a court of competent jurisdiction as a debt due to the Crown.

PART 10 - The Commissioner for Review

60.   Appointment, &c., of Commissioner for Review

(1)  Subject to this section, the Governor may appoint a person to be known as the Commissioner for Review.

(2)  Subject to this Part, the Commissioner for Review holds office for such term, not exceeding 5 years, as may be specified in the instrument of appointment and may from time to time be reappointed for a further term, not exceeding 5 years, as may be so specified.

(3)  A person who has attained the age of 65 years shall not be appointed or reappointed as Commissioner for Review.

(4)  A person who is a Member of a House of Parliament of the Commonwealth, or of a State or Territory of the Commonwealth, or a candidate for election as a Member of such House of Parliament, is disqualified from being appointed to the office of Commissioner for Review, and if a person holding that office becomes a candidate for election as such a member, the person thereupon vacates office.

(5)  For the purposes of subsection (4) , a person becomes a candidate for election as a Member of a House of Parliament when nominated for that election in accordance with the law regulating the election.

(6)  The Commissioner for Reviewshall not, without the permission of the Governor, hold any other office of profit or engage in any occupation for reward outside the duties of the Commissioner for Review's office.

(7)  The Commissioner for Review is entitled to such remuneration and allowances as the Governor determines, and holds office subject to such terms and conditions (if any) with respect to matters not provided for in this Act as are specified in the instrument of appointment.

(8)  [Section 60 Subsection (8) amended by No. 68 of 1994, s. 3 and Sched. 1 ]The Commissioner for Review shall be deemed to be an employee for the purposes of the Retirement Benefits Act 1993 and the Long Service Leave (State Employees) Act 1994 .

(9)  If an employee is appointed to the office of Commissioner for Review the employee is entitled to retain all existing and accruing rights with respect to leave as if service in that office were a continuation of the employee's service as an employee.

(10)  Where a person referred to in subsection (9) ceases to hold the office of Commissioner for Review and becomes an employee, the person's service in that office shall be regarded as service as an employee for the purposes of determining the person's rights as an employee.

(11)  A person who ceases to hold office as Commissioner for Review by reason of the expiration of the term of office or resignation is, if the person has not attained the age of 65 years, entitled to be appointed, where, immediately before the appointment as Commissioner for Review, the person was a permanent employee, to some position as a permanent employee in the State Service not lower in classification and salary than that which the person held immediately before the person's appointment as Commissioner for Review.

61.   Vacation of office of Commissioner for Review

(1)  A person holding the office of Commissioner for Review shall be deemed to have vacated that office –

(a) on attaining the age of 65 years; or

(b) on resignation from office under subsection (2) ; or

(c) on removal from office in accordance with subsection (3) .

(2)  A person holding the office of Commissioner for Review may at any time resign office by notice in writing delivered to the Governor.

(3)  The Governor may remove the Commissioner for Review from office if the Governor receives resolutions from both Houses of Parliament requesting that the Commissioner be so removed.

(4)  Where the Governor is satisfied that the Commissioner for Review –

(a) except by reason of temporary illness, is incapable of performing, or is inadequately performing, the functions of that office; or

(b) has become bankrupt, applied to take or has taken advantage of any law for the relief of bankrupt or insolvent debtors, compounded with creditors, or made an assignment of any part of the Commissioner for Review's estate for their benefit; or

(c) has been convicted of a crime or an offence in Tasmania which is punishable by imprisonment for a term of 6 months or more, or has been convicted elsewhere than in Tasmania of a crime or an offence which, if committed in Tasmania, would be a crime or an offence so punishable; or

(d) has been guilty of misconduct in relation to the performance of the Commissioner for Review's functions; or

(e) has contravened section 60 (6) –

the Governor may suspend the Commissioner for Review from office.

(5)  Where the Commissioner for Review has been suspended from office under subsection (4) , the Commissioner for Review shall be restored to office unless –

(a) a statement of the grounds of the suspension is laid before each House of Parliament during the first 7 sitting days of that House following the suspension; and

(b) each House of Parliament, within 30 sitting days after that statement is so laid, passes a resolution requesting the Governor to remove that person from office.

(6)  Where the Commissioner for Review is suspended from office under subsection (4) and each House of Parliament does not pass a resolution, within the period referred to in subsection (5) (b) , requesting the Governor to remove that person from office, the Commissioner for Review shall be entitled to receive the Commissioner for Review's full salary and allowances in respect of the period during which the Commissioner for Review was suspended.

62.   Appointment of person to act as Commissioner for Review

(1)  Where the person holding office as Commissioner for Review –

(a) is absent from office through illness, leave or any other cause; or

(b) is suspended from office or is otherwise incapable of performing the functions of office; or

(c) dies or otherwise vacates office –

the Governor may appoint a person as Acting Commissioner for Review during that absence, suspension or incapacity or, as the case may be, until the vacant office of Commissioner for Review is filled, and the person appointed as Acting Commissioner for Review shall perform the functions and exercise the powers of the Commissioner for Review under this Act.

(2)  All things done or omitted to be done by the Acting Commissioner for Review shall be as valid, and have the same consequences, as if they had been done or omitted to be done by the Commissioner for Review.

(3)  A person shall not be appointed as Acting Commissioner for Review for a period exceeding 12 months.

(4)  A person who has attained the age of 65 years shall not be appointed as Acting Commissioner for Review.

(5)  A person who is a Member of a House of Parliament of the Commonwealth, or of a State or Territory of the Commonwealth, or a candidate for election as a Member of such House of Parliament, is disqualified from being appointed to the office of Acting Commissioner for Review, and if a person holding that office becomes a candidate for election as such a Member, that person thereupon vacates that office.

(6)  For the purposes of subsection (5) , a person becomes a candidate for election as a Member of a House of Parliament when nominated for that election in accordance with the law regulating the election.

(7)  The Acting Commissioner for Review is entitled to such remuneration and allowances as the Governor determines and holds office subject to such terms and conditions of service as the Governor determines.

(8)  The Governor may at any time terminate the appointment of a person as Acting Commissioner for Review.

(9)  The Acting Commissioner for Review may at any time resign office by notice in writing delivered to the Governor.

63.   Functions of Commissioner for Review

(1)  In addition to such other functions as are, by this Act, imposed on the Commissioner for Review, the Commissioner for Review shall review all matters referred to the Commissioner for Review pursuant to this Act.

(2)  In the performance of the functions under subsection (1) , the Commissioner for Review shall ensure that the merit principle is upheld throughout the State Service.

64.   Powers of Commissioner for Review

(1)  In addition to any other power conferred on the Commissioner for Review by any other provision of this Act, the Commissioner for Review may –

(a) enter and remain, with such assistants as the Commissioner for Review considers necessary, in anypremises at which the functions or activities of an Agency are carried on for the purpose of carrying out the Commissioner for Review's functions under this Act; and

(b) subject to subsection (2) , request the Head of an Agency to produce any documents or records concerning matters of administration which relate to the functions or activities of that Agency; and

(c) request the Head of an Agency or any person employed in that Agency to answer any question with respect to any matter relating to the functions or activities carried on by or in that Agency; and

(d) inspect any such premises and any plant, equipment or article which appears to the Commissioner for Review to be kept on those premises for the purposes of, or in connection with, those functions or activities.

(2)  The regulations may prescribe documents or records or classes of documents or records that a person is not required to produce under subsection (1) (b) .

(3)  It is the duty of every person employed in an Agency to co-operate with and, so far as it is within that person's power to do so, to comply with any lawful request made to the person by the Commissioner for Review or any person, board of appeal, or prescribed body exercising any of the powers delegated pursuant to section 70 and, in particular, not to obstruct or hinder the Commissioner for Review or any such person or body in the exercise of any of the powers referred to in subsection (1) (a) or (d) of this section.

65.   Persons to be made available to Commissioner for Review

[Section 65 Substituted by No. 5 of 1990, s. 3 and Sched. 1 ]The Commissioner for Review may, with the approval of the Minister, make arrangements with the Head of an Agency for such persons employed in that Agency as are necessary to be made available to enable the performance of the functions and exercise of the powers of the Commissioner for Review.

66.   Appeals to Commissioner for Review

[Section 66 Subsection (1) amended by No. 18 of 1988, s. 22 ][Section 66 Subsection (1) amended by No. 60 of 1993, s. 16 ]

(1)  [Section 66 Subsection (1) amended by No. 61 of 1985, s. 15 ]A permanent employee –

(a) who is aggrieved by the selection of a person or employee to fill a vacancy in a position in an Agency pursuant to section 36 (2) for which the employee was an applicant; or

(b) who is aggrieved by the selection of a permanent employee to fill a vacancy in a position in an Agency pursuant to section 36 (1) (b) ; or

(c) who is aggrieved by the classification assigned in relation to the position held by the employee; or

(d) who is aggrieved by an evaluation of the employee's performance by the Head of the Agency in which the employee is employed; or

(e) .  .  .  .  .  .  .  .  

(f) who is aggrieved by the intention of the Head of the Agency in which the employee is employed to take action under section 52 (10) ; or

(g) who is aggrieved by the decision of the Head of the Agency in which the employee is employed to take action under section 55 (2) (a) (i) or (ii) ; or

(h) .  .  .  .  .  .  .  .  

(i) who is aggrieved by the decision of the Head of the Agency in which the employee is employed to take action under section 55 (13) –

may appeal to the Commissioner for Review.

(1A)  [Section 66 Subsection (1A) inserted by No. 49 of 1993, s. 5 ]An employee may appeal to the Commissioner for Review against the selection process in relation to the filling of a vacancy in a position in an Agency pursuant to section 36 (2) .

(1B)  [Section 66 Subsection (1B) inserted by No. 60 of 1993, s. 16 ]An employee is not entitled to appeal under any provision of this Act against a declaration under section 47 , except under subsection (1C) of this section, or against the serving of a notice under section 47 .

(1C)  [Section 66 Subsection (1C) inserted by No. 60 of 1993, s. 16 ]An employee may appeal to the Commissioner for Review on the ground that, before making a declaration under section 47 , the Head of the Agency failed to exercise in respect of that employee a power under section 42 (3) or (3A) in relation to a vacancy that was available in that Agency at the date on which the declaration was made.

(2)  Any employee may appeal to the Commissioner for Review on the ground that the employee has not received fair or equitable treatment in the employee's employment in the State Service.

(2A)  [Section 66 Subsection (2A) inserted by No. 49 of 1993, s. 5 ]An employee is not entitled to appeal under subsection (2) against the selection process in relation to the filling of a vacancy in a position in an Agency pursuant to section 36 (2) .

(3)  The Governor may, by regulation, prescribe any matter other than a matter referred to in subsections (1) and (2) in respect of which an employee may appeal to the Commissioner for Review.

67.   Head of Agency to discuss reasons with appellant

The Commissioner for Review, where the Commissioner for Review considers it necessary, may, by notice in writing, direct the Head of the Agency concerned to discuss with the appellant, within the time specified in the notice, the reasons for the action, decision or intention in respect of which the appellant is appealing.

68.   Procedure, &c., of appeal

(1)  The procedure for an appeal before the Commissioner for Review is, subject to this Part, within the discretion of the Commissioner for Review.

(2)  Proceedings before the Commissioner for Review shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Part, and a proper consideration of the matter, permit.

(3)  [Section 68 Subsection (3) substituted by No. 49 of 1993, s. 6 ]The Commissioner for Review may determine an appeal –

(a) by holding a hearing; or

(b) in the case of an appeal under section 66 (1) (a) or (b) or under section 66 (1A) , without holding a hearing if the board of appeal established under the regulations is of the opinion that an appeal is able to be determined on the documentary evidence available and without the parties to the appeal being present; or

(c) in the case of any other appeal, without holding a hearing if the Commissioner for Review and the parties to the appeal agree.

(4)  The Commissioner for Review, when conducting an appeal under this Part, shall observe the principles of natural justice.

(5)  [Section 68 Subsection (5) amended by No. 61 of 1985, s. 16 ]Where the Commissioner for Review conducts an appeal by holding a hearing the Commissioner for Review shall give reasonable notice to the appellant, the Head of the Agency concerned or, where the appeal is made in respect of a matter referred to in section 66 (1) (a) or (b) and the Minister has delegated the Minister's power of appointment or promotion to a person other than the Head of an Agency, to that other person, the Commissioner, where appropriate and any other person who is joined as a party to the proceedings, of the time and place at which the appeal is to be heard.

(6)  [Section 68 Subsection (6) amended by No. 18 of 1988, s. 23 ]An appeal that is to be determined by the Commissioner for Review shall not be heard in public unless the appellant and the Commissioner for Review agree that it should be so heard.

(7)  [Section 68 Subsection (7) amended by No. 18 of 1988, s. 23 ]Where the Commissioner for Review conducts an appeal by holding a hearing, each party is entitled to appear before the Commissioner for Review and to tender written evidence to the Commissioner for Review.

(8)  [Section 68 Subsection (8) substituted by No. 18 of 1988, s. 23 ]Where the Commissioner for Review conducts an appeal without holding a hearing, each party is entitled to tender written evidence to the Commissioner for Review.

(9)  [Section 68 Subsection (9) amended by No. 41 of 1986, s. 4 ]Where the Commissioner for Review conducts an appeal by holding a hearing, a party to the proceedings relating to the hearing may, with the approval of the Commissioner for Review, nominate any person to appear in the proceedings as the advocate of that party, and, where such a person is so nominated, that person may appear before the Commissioner for Review in those proceedings and may, on behalf of the party for which the person is appearing as advocate, tender evidence to the Commissioner for Review.

(10)  A person who is a barrister or a legal practitioner may, with the approval of the Commissioner for Review, be nominated as an advocate by a party to proceedings before the Commissioner for Review, or be permitted to appear as an advocate in those proceedings on behalf of such a party –

(a) if one of the other parties to the proceedings is a barrister or legal practitioner or is qualified for and entitled to be admitted as a barrister or legal practitioner; or

(b) if all parties to the proceedings agree to such a person appearing as an advocate on behalf of a party to the proceedings.

(11)  The Commissioner for Review may, by instrument in writing served on the person specified in the summons, summon that person to give evidence at proceedings before the Commissioner for Review or, subject to subsection (12) , to produce documents or records in the person's possession or under the person's control at those proceedings.

(12)  The regulations may prescribe documents or records or classes of documents or records that a person is not required to produce under subsection (11) .

(13)  [Section 68 Subsection (13) amended by No. 18 of 1988, s. 27 and Sched. 1 ]Any person who, without reasonable excuse, fails to comply with a summons served under subsection (11) is guilty of an offence and is liable on summary conviction to a fine not exceeding 5 penalty units.

(14)  For the purposes of hearing and determining an appeal the Commissioner for Review may take evidence on oath or affirmation and, for those purposes, may administer an oath or affirmation.

(15)  The Commissioner for Review may admit any relevant evidence at an appeal under this Part notwithstanding that the evidence would not be admissible in a court of law.

(16)  The Commissioner for Review may adjourn proceedings of an appeal from time to time and from place to place and may determine an appeal notwithstanding that the appellant or the appellant's advocate has failed to appear at the time and place fixed under subsection (5) or at a time and place to which the hearing is adjourned under this subsection.

(17)  [Section 68 Subsection (17) amended by No. 61 of 1985, s. 16 ]In the determination of an appeal under this section, the Commissioner for Review may –

(a) dismiss the appeal; or

(b) uphold the appeal and direct the Minister, the Commissioner, the Head of the Agency or other person to whom the Minister has delegated the Minister's power of appointment or promotion, whichever may be appropriate, to take such action as the Commissioner for Review considers necessary; or

(c) make no decision in relation to the appeal and refer the matter to the Commissioner to take such action as the Commissioner considers necessary.

(18)  The Commissioner for Review shall give the decision in respect of an appeal in writing.

(19)  The Commissioner for Review shall cause a copy of the decision in respect of an appeal to be served on each of the parties to the appeal.

(20)  If in relation to an appeal the appellant so requests, the Commissioner for Review shall provide the appellant with a statement in writing setting out the reasons for the decision in respect of the appeal.

(21)  The decision of the Commissioner for Review in respect of an appeal under this Part is final.

(22)  [Section 68 Subsection (22) omitted by No. 49 of 1993, s. 6 ].  .  .  .  .  .  .  .  

69.   Payment of costs of appeal

(1)  If the Commissioner for Review is of the opinion that the appeal is frivolous or vexatious the Commissioner for Review may dismiss the appeal and order that employee to pay an amount determined by the Commissioner for Review, and approved by the Governor, as being the costs of the appeal, and that amount is recoverable in the manner prescribed for the recovery of fines imposed under this Act.

(2)  Where the Commissioner for Review makes an order under subsection (1) , the Commissioner for Review shall forward a copy of the order to the Treasurer.

(3)  If the Commissioner for Review allows the appeal, the Commissioner for Review may direct the Treasurer that an amount, determined by the Commissioner for Review as being the reasonable expenses incurred by the employee who lodged the appeal in meeting the charges and the costs of the appeal, be paid to the employee.

(4)  If the Treasurer is directed under subsection (3) to pay an amount to an employee the Treasurer shall, without any authority other than this section, pay the amount and that payment shall be a charge on the Consolidated Fund and be made out of that Fund without further appropriation than this section.

70.   Delegation by Commissioner for Review

(1)  The Commissioner for Review may, by instrument in writing, delegate to –

(a) any person or persons specified in the instrument of delegation; or

(b) a board of appeal established in accordance with the regulations; or

(c) a prescribed body –

the performance or exercise of such of the Commissioner for Review's functions and powers under this Act (other than this power of delegation) as are specified in the instrument of delegation.

(2)  The Commissioner for Review may, by instrument in writing, revoke wholly or in part or vary a delegation made under this section.

(3)  A function or power, the performance or exercise of which has been delegated under this section, may, while the delegation remains unrevoked, be performed or exercised from time to time in accordance with the terms of the delegation.

(4)  A delegation under this section may be made subject to such conditions or limitations as to the performance or exercise of any of the functions or powers delegated, or as to time or circumstance, as are specified in the instrument of delegation.

(5)  Notwithstanding any delegation under this section, the Commissioner for Review may continue to perform or exercise all or any of the functions or powers delegated.

(6)  Any act or thing done by or to a delegate while acting in the exercise of a delegation under this section shall have the same force and effect as if the act or thing had been done by or to the Commissioner for Review and shall be deemed to have been done by or to the Commissioner for Review.

(7)  An instrument purporting to be signed by a delegate of the Commissioner for Review in the capacity as such a delegate shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by the Commissioner for Review and, until the contrary is proved, shall be deemed to be an instrument signed by a delegate of the Commissioner for Review under this section.

(8)  If the Commissioner for Review by whom a delegation is made dies, or ceases to hold, or is suspended from, office, that delegation shall be deemed to continue in force according to its tenor until it is revoked or varied under this section.

(9)  Where the Commissioner for Review delegates the function of hearing an appeal under this Part, the person conducting the appeal shall ensure that it is conducted in accordance with this Part.

71.   Reports by Commissioner for Review

(1)  The Commissioner for Review shall, on or before 30 September in each year, if Parliament is sitting, and if Parliament is not sitting within 7 days after it assembles, transmit to both Houses of Parliament a report on the performance of the Commissioner for Review's functions during the period of 12 months ending on 30 June in that year.

(2)  The Commissioner for Review may, at any time, submit to the Minister a report with respect to any matter arising out of the performance of the Commissioner for Review's functions or the exercise of the Commissioner for Review's powers under this Act.

(3)  The Minister may, by notice in writing, or either House of Parliament may, by resolution, request a report from the Commissioner for Review on any matter arising out of the performance of, or the failure to perform, any of the Commissioner for Review's functions under this Act or arising out of the exercise of, or the failure to exercise, any of the Commissioner for Review's powers under this Act.

(4)  The Commissioner for Review shall comply with any request from the Minister or from either House of Parliament for a report referred to in subsection (3) as soon as practicable after the receipt of the request.

72.   Relationship with Ombudsman and other tribunals

(1)  The Commissioner for Review may review any decision affecting an employee referred to the Commissioner for Review by the Ombudsman and any matter so referred to the Commissioner for Review shall be dealt with in accordance with this Act.

(2)  The Commissioner for Review is not empowered to review any decision relating to any matter under investigation by the Ombudsman or any tribunal or any inquiry conducted under this or any other Act until that investigation has been completed.

PART 11 - Miscellaneous

73.   

[Section 73 Repealed by No. 4 of 1990, s. 10 and Sched. 2 ].  .  .  .  .  .  .  .  

74.   Public notification

Notice of all appointments of permanent employees, promotions and transfers to positions in the State Service, and resignations, retirements and dismissals from the State Service, shall be published in the Gazette and shall be conclusive evidence of every such appointment, promotion, transfer, resignation, retirement or dismissal.

75.   Holidays

(1)  Every bank holiday observed throughout the State under the Bank Holidays Act 1919 shall be a State Service holiday throughout the State Service.

(2)  Whenever the Governor, by notification pursuant to the Bank Holidays Act 1919 , appoints a special day or part of any specified day to be observed as a bank holiday or bank part holiday, either throughout Tasmania or in any part of Tasmania or in any city, town or district in Tasmania, that day or part of that day so appointed shall be kept as a holiday or part holiday in all offices of the State Service situated within the locality mentioned in the notification.

(3)  The Governor may at any time appoint any specified day or specified part of a day to be kept as a holiday or part holiday in the offices of the State Service or in the offices of the State Service in any part of Tasmania.

(4)  The Minister or the Head of an Agency may require an Agency or part of any Agency to be kept open in the public interest for the whole or any portion of a holiday, and may require the attendance and service of any employee of the Agency during any such holiday.

(5)  Where an employee has been required by the Minister or the Head of the Agency in which the employee is employed to be in attendance at that Agency during any holiday, the employee shall be granted a holiday on such other occasion as the Minister or Head of the Agency determines.

76.   

[Section 76 Repealed by No. 18 of 1988, s. 25 ].  .  .  .  .  .  .  .  

77.   Service of notices and documents

Where under this Act a document or notice is required or authorized to be served on a person, the document or notice may be served –

(a) by delivering it to the person personally or by leaving it at the person's place of residence last known to the person required or authorized to serve that document or notice with someone who apparently resides there, being a person who has or apparently has attained the age of 16 years; or

(b) by sending it by post to the person's place of residence last known to the person required or authorized to serve that document or notice.

78.   Application of fines

All fines imposed, and all fees received, under this Act shall be paid into and form part of the Consolidated Fund.

79.   Activities undertaken outside the State Service

(1)  Where an employee wishes to –

(a) accept or continue to hold an office in or under the Government of the Commonwealth or of any other State, or in or under any public or municipal corporation; or

(b) accept or continue to hold or discharge the duties of, or be employed in a paid office in connection with, any banking, insurance, mining, mercantile or other commercial business whether carried on by any corporation, company, firm or individual; or

(c) engage in or undertake any such business, whether as principal or agent; or

(d) engage or continue in the private practice of any profession, occupation or trade, or enter into any employment, whether remunerative or not, with any person, company or firm who or which is so engaged; or

(e) accept or engage in any remunerative employment other than in connection with the duties of the employee's position in the State Service –

the employee shall obtain the permission of the Head of the Agency in which the employee is employed.

(2)  Where the Head of an Agency considers that –

(a) there is a conflict of interest between the work performed by the employee and the activity specified in subsection (1) that the employee wishes to undertake or continue to undertake; or

(b) the undertaking or continued undertaking of that activity by the employee will interfere with the performance of the employee's duties –

the Head may refuse permission for that employee to undertake or continue to undertake that activity.

(3)  Where the Head of an Agency grants permission to an employee employed in that Agency to undertake or continue to undertake an activity specified in subsection (1) , the Head may include in that permission such conditions or further conditions, if any, as the Head considers necessary.

(4)  The Head of an Agency may, at any time, by notice in writing served on an employee employed in that Agency, revoke a permission granted to the employee under this section.

(5)  Nothing in this section shall be deemed to prevent an employee from becoming a member or shareholder only of any incorporated company, or of any company or society of persons registered under any law in any State or elsewhere.

79A.   Restriction on exercise of functions and powers of Commissioner, Secretary and Commissioner for Review

[Section 79A Inserted by No. 18 of 1988, s. 26 ]The Commissioner, Secretary or Commissioner for Review shall not perform his or her functions or exercise his or her powers under this Act in such a manner as to interfere with the personal, professional and clinical relationship between a medical practitioner employed under this Act and that medical practitioner's patients or between that medical practitioner and another medical practitioner or to interfere in any way with matters of clinical judgment of a medical practitioner employed under this Act.

80.   Bankruptcy of employee

Where an employee becomes bankrupt or makes any composition, arrangement or assignment for the benefit of creditors, the employee shall forthwith give to the Minister notification of the composition, arrangement or assignment, accompanied by an explanation in writing of the cause of the bankruptcy, or of making the composition, arrangement or assignment, and shall, within such period as may be specified by the Minister, furnish to the Minister such further information with respect to the cause of the bankruptcy or of making the composition, arrangement or assignment as may be required by the Minister.

81.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(1A)  [Section 81 Subsection (1A) inserted by No. 59 of 1992, s. 65 ]Except as provided in subsection (2) , subsection (1) does not authorize regulations to be made fixing or altering rates of salaries or wages payable to employees.

(2)  [Section 81 Subsection (2) amended by No. 61 of 1985, s. 17 ]Without limiting the generality of subsection (1) , the Governor may make regulations for or with respect to the following matters:

(a) the payment of salaries and wages to employees or specified classes of employees and the rates and amounts of payments to employees or specified classes of employees for overtime work, and the conditions applicable to those payments;

(b) the rates and amounts of payments to employees or specified classes of employees for travelling expenses and allowances, transfer expenses and allowances, meal allowances, and any other allowances that may be thought necessary, and the conditions applicable to the payment of those expenses and allowances;

(c) the duties of employees, or specified classes of employees, the hours of their attendance and the conditions relating to the duties of employees or specified classes of employees and the hours of their attendance;

(d) the granting of leave of absence to employees or specified classes of employees and providing for and regulating the granting of such leave;

(e) the leave of absence on account of childbirth to which female employees or specified classes of female employees are entitled and the terms and conditions in respect of which such leave may be granted;

(f) the rates and amounts of payments to employees or specified classes of employees in respect of extra services according to the nature of the services and the salary classification of the employee performing it;

(g) the deductions that may be made from salaries payable to employees or specified classes of employees in cases prescribed in the regulations and the procedures and the conditions as to how and under which those deductions may be made;

(h) the discipline and conduct of employees or specified classes of employees;

(i) the taking of disciplinary action, and the procedure to be adopted in the taking of that action, against employees or specified classes of employees in respect of the contravention of, or failure to comply with, the regulations;

(j) the circumstances in which, and the conditions subject to which, the services of employees or specified classes of employees may be terminated;

(k) appeals in respect of disciplinary action taken against employees or specified classes of employees;

(l) the enforcement of a punishment for a breach of discipline or conduct by an employee or specified class of employee;

(m) the establishment of boards of review to hear and determine appeals by employees or specified classes of employees and the establishment of bodies to conduct inquiries under section 55 ;

(n) the fees and allowances to be paid to members of a board of review;

(o) the payments to be made to the Crown in the event of an employee or specified class of employee failing to complete a prescribed course of training to the satisfaction of the Minister, or to pass any specified examination, or of an employee failing to remain in the State Service for a specified period after completing a prescribed course of training;

(p) the manner in which, and the period within which, an appeal may be made under section 66 ;

(q) the procedure in relation to the hearing and determination of appeals to the Commissioner for Review, including –

(i) the manner by which, and the circumstances in which, several such appeals may be consolidated and heard together; and

(ii) the procedure for summoning witnesses, taking evidence, receiving submissions and requiring the production of documents;

(r) the form, effect, duration, cancellation and terms and conditions of indentures of cadetship;

(s) the preparatory education required of persons who desire to enter into indentures of cadetship;

(t) the establishment and awarding of scholarships, and the granting of other forms of financial assistance, for the purpose of assisting persons to undergo courses of instruction and training, and the amount or value of the scholarships and financial assistance, and the terms and conditions upon and subject to which any such scholarship or other financial assistance may or shall be granted.

(3)  Regulations made pursuant to subsection (2) (h) may incorporate by reference any general orders or standing orders relating to employees of a specified class issued by the Head of the Agency in which those employees are employed.

(4)  Nothing in subsection (2) (o) authorizes the making of any regulations that require the payment of any sum to the Crown in respect of the failure of any person to remain an employee in the State Service after the expiration of a period of 3 years from the date on which the person completed the training.

(5)  Where any sum becomes payable to the Crown pursuant to subsection (2) (o) , the Treasurer may remit the payment of the whole or any part of that sum, either unconditionally or on such conditions as the Treasurer may determine.

(6)  Regulations under this section may, in making provision for or with respect to any matter referred to in subsection (2) (b) , adopt by reference all or any of the provisions of an award in force under the Industrial Relations Act 1984 or any such provisions as modified pursuant to subsection (7) .

(7)  Regulations under this section may provide for the modification of any provisions adopted under subsection (6) .

(8)  The regulations may authorize the Treasurer to make advances to permanent employees for the purpose of assisting them to purchase motor vehicles for use in connection with the performance of their official duties, and may prescribe the maximum amount of any such advance, and the terms and conditions upon and subject to which such advances may be made, and may regulate and control generally the making and repayment of such advances.

(9)  Regulations made under this section may be made subject to such conditions, or be made so as to apply differently according to such factors as may be specified in the regulations or according to such limitations or restrictions, whether as to time or circumstance or otherwise, as may be so specified.

(10)  [Section 81 Subsection (10) amended by No. 18 of 1988, s. 27 and Sched. 1 ]Regulations under this section may provide that it is an offence, punishable on summary conviction, for a person to contravene or fail to comply with any of the regulations and may provide in respect of any such offence for the imposition of a fine not exceeding 5 penalty units and, in the case of a continuing offence, a further fine not exceeding 1 penalty unit for each day during which the offence continues.

(11)  A regulation under this section may authorize any matter or thing to be from time to time determined, applied or regulated by any person or body specified in the regulation.

(12)  [Section 81 Subsection (12) substituted by No. 59 of 1992, s. 65 ]If a regulation under –

(a) subsection (2) (a) or (2) (b) ; or

(b) subsection (2) (c) , except in so far as it relates to the duties of employees; or

(c) subsection (2) (d) , in so far as it relates to recreation and sick leave; or

(d) subsection (2) (e) or (2) (f) –

is inconsistent with an award, it is, to the extent of the inconsistency, of no effect.

(13)  In this section specified means specified in the regulations.

82.   Repeal

The enactments specified in Schedule 2 are repealed.

83.   Transitional provision

A person employed under section 38 (1) immediately before the commencement of the Industrial Relations Amendment (Enterprise Agreements and Workplace Freedom) Act 1992 is taken to be employed under section 38 (1) (a) as amended by that Act.

SCHEDULE 1 - Agencies

[Schedule 1 Substituted by S.R. 1996, No. 32 ][Schedule 1 Amended by No. 57 of 1996, s. 55 and Sched. 5 ][Schedule 1 Amended by No. 59 of 1996, s. 14 ][Schedule 1 Substituted by S.R. 1998, No. 123, Applied:18 Sep 1998]

PART 1 - Government Departments

[Part 1 of Schedule 1 Amended by S.R. 1997, No. 176, Applied:01 Jan 1998] [Part 1 of Schedule 1 Amended by S.R. 1998, No. 39, Applied:06 May 1998] [Part 1 of Schedule 1 Substituted by S.R. 1998, No. 123, Applied:18 Sep 1998] [Part 1 of Schedule 1 Amended by S.R. 1999, No. 6, Applied:15 Feb 1999]

PART 2 - State Authorities

[Part 2 of Schedule 1 Amended by No. 79 of 1997, Sched. 3, Applied:02 Feb 1998] [Part 2 of Schedule 1 Substituted by S.R. 1998, No. 123, Applied:18 Sep 1998]

SCHEDULE 2 - Repeal

Section 82