How reviews are conducted

Use an application form to tell us:

• what has happened
• what you would like us to review
• what outcome you are seeking.

We will acknowledge receipt of your application within 2 business days

We decide if your application meets all the criteria to allow us to review it.

This step is usually completed within 5 business days.

Sometimes we will need to write to you to ask you more questions, and will usually give you 7 days to reply to us.

Eligible applications include:

• applications made within the statutory timeframe
• applications from APS or Parliamentary Service employees (or eligible former employees)
• applications for review of an action or decision that relates to your employment.

Ineligible applications include:

• applications for review of decisions where we have no jurisdiction, for example decisions about an agency’s high-level strategic goals
• applications from members of the public who are not APS or Parliamentary Service employees
• applications made out of time without any exceptional circumstances to explain the delay.

For most eligible applications, we need to get additional information from your agency to assist us to complete the review.

We ask the agency to send us this information within 7 days.

We also ask the agency to send you a copy of all of the additional information we receive.

We contact you to discuss your reasons for seeking review, and the information you wish to provide.

We will usually always invite you to make a final submission in writing (or by phone if you prefer), before we finalise the review. We have guidance on how to make a submission.

We carefully consider all of the information we have gathered.

Sometimes we may need to seek extra information or interview people as part of the review. If we do this, we will give you a copy of that information, or a summary of relevant parts of that information, to comment on before we finalise the review.

Our role in conducting a merits review is to ‘stand in the shoes’ of the original decision maker, to take a fresh look at the relevant facts, law and policy, and to reach a recommendation to either confirm, vary or set aside the original decision. To do so, we will have regard to the state of affairs that existed at the time of our review recommendation, we will conduct an independent assessment and reach an independent view, and determine what is, in our view, the correct or preferable decision in the circumstances.

Your agency will respond to our recommendation within 14 days. You will receive a copy of this response. Your agency will advise what they will do in response to our recommendation. In nearly all cases the agency accepts our recommendation. If your agency does not accept the recommendation, and the Merit Protection Commissioner considers it appropriate, we can escalate the matter further to the Minister, the Prime Minister or the Parliament.

Our review may be conducted ‘on the papers’ only. This means we may not need to speak to anyone as we have enough information to finalise the review.

Our role is to review the decision or action, and determine if it was reasonable or appropriate in the circumstances. It is not our role to reinvestigate. If we consider the investigation was inadequate, or there was not sufficient evidence to make the decision, then we may recommend the decision be set aside or varied.

Sometimes we will need to speak to your manager or an expert in your agency so that we better understand the particular circumstances of your workplace, or your role. We may also ask for additional supporting documents such as policies and procedures, or for further available evidence. We will let you know if we need to do this, and we will give you a copy of any relevant information we gather, or extracts of relevant parts, so that you can provide any comments.

If you have further evidence, you can provide it to us. We will not ordinarily interview new witnesses or conduct a fresh investigation.

We will recommend to your agency that they either confirm, vary or set aside the action under review. If the recommendation is to vary or set aside the decision, we may recommend that a different decision should be made.

The agency must consider our recommendation and advise the employee and us of their decision following the recommendation, and their reasons.

Our recommendations are followed by agencies in nearly all cases. In the unusual case where an agency does not follow our recommendation, and we are not satisfied with this response, the Merit Protection Commissioner may raise the matter with the relevant Minister, Prime Minister or the Parliament.

Once a review recommendation has been made, you have no further right of review under the Public Service Act or Parliamentary Service Act. You can apply to the Federal Court or Federal Circuit Court for judicial review. In such cases, it is advisable to seek independent legal advice.

If you have concerns there has been a jurisdictional error in our review outcome, you can contact us to discuss your concerns, give us feedback or make a complaint. Please note, a review outcome cannot be changed if there is no legal error.

Within 4 weeks of your review being finalised, we will invite you to complete a survey about your experience with the review process. The survey is voluntary and anonymous. We will use your feedback to continuously improve our review process. You can also give us direct feedback or make a complaint. 

As at July 2021, the average time to complete a review is 32 days from receipt.

Our aim is to finalise 70% of reviews within 14 weeks of receipt. If your review is likely to take longer than 14 weeks, we will contact you and let you know.

Sometimes we can act much more quickly – let us know if there is any urgency.

Urgent applications may include ones where your APS or Parliamentary Service employment may be terminated or where they may be upcoming significant workplace changes that may have a negative impact on you. It may also include personal circumstances where you may not be available after a certain date due to planned medical circumstances.

Applications that are complex can take longer before we make a final recommendation.

Our review process is simple, informal and fair. You will not need a lawyer or other representative to assist you.

If your particular situation means you want or need to have a lawyer or other representative assist you, you may do so if the Merit Protection Commissioner decides that it would be reasonable in all the circumstances.

When we need to talk to you on the phone, we will usually need to speak with you directly. You can have your lawyer or representative present as a support person in these conversations but they usually will not be allowed to speak on your behalf.

There are no rules about what outcome you can ask for

It is most helpful to think about what outcome you think is reasonable and appropriate in the circumstances, and one that your agency can realistically implement

For example, some applicants ask for a less harsh sanction if they have financial hardship, or some applicants ask for a change in their working hours if they have caring responsibilities.

In many reviews, we can try to assist you and your agency to come to a mutually agreeable outcome to resolve the issues, where this may be appropriate. Some types of reviews, such as Code of Conduct reviews, are not suitable for informal resolution.

Procedural fairness involves three closely related legal obligations:

• That a fair hearing is provided by the decision-maker and, before an adverse decision is made, the person affected by the decision is informed of all information that is adverse, relevant and credible and is given a fair and reasonable opportunity to make a submission in reply.
• That a decision-maker is free of actual bias and that no reasonable apprehension of bias is present.
• That a decision-maker’s findings are based on evidence and are neither arbitrary nor irrational.

Procedural fairness generally applies to decisions made under legislation, such as Code of Conduct decisions and suspension decisions, or decisions that have adverse outcomes to an employee. Day to day management decisions do not usually need to comply with formal procedural fairness requirements.

When we conduct a review, we make sure our decision making is procedurally fair and we review whether the APS or Parliamentary Service agency’s decision was procedurally fair.

This is important because a decision maker who follows a fair process is much more likely to reach a fair and reasonable outcome.

When we review a determination that an employee breached the Code of Conduct, we consider both the evidence gathered during the agency’s investigation and the employee's explanation for what happened and their concerns about the agency's decision.

We will reach conclusions about whether:

• the employee did, or did not do, what was determined
• what the employee did, or did not do, was appropriate in light of the employee's responsibilities, agency policies etc
• the employee’s actions were a breach of the Code of Conduct, and if so, what elements of the Code of Conduct were breached

If a sanction was imposed, we will consider whether the sanction is appropriate in the circumstances of the employee's case.

Our reviews also consider whether the agency substantially complied with relevant procedures, policy or guidelines and with the requirements of procedural fairness.

In conducting a review about a Code of Conduct breach or sanction, we will usually rely on guidance provided by the Australian Public Service Commission in their Handling Misconduct publication. The reviewer may also rely on the Australian Public Service Commission's guide – APS Values and Code of Conduct in Practice.

Taking into account all of the above considerations, our review will determine whether the decision(s) was appropriate or reasonable in the circumstances. If it wasn't, we will recommend a different decision be substituted.

We will make an assessment of the sanction imposed by your agency, and determine what the most appropriate sanction may be in the circumstances.

Although an uncommon occurrence, we can potentially recommend the sanction be increased if we are of the view that the imposed sanction is not, in all the circumstances, properly proportionate to the seriousness of the conduct.  

If we are likely to recommend a sanction be increased, we will contact you and provide you with an opportunity to respond prior to an increase in sanction being recommended. At this point, it would be open to you to withdraw your application before we make any such recommendation. This would mean your original sanction would stay the same.