Public Administration Amendment (Public Sector Improvement) Act 2014
Authorised by the Chief Parliamentary Counsel
Authorised Version
i
Public Administration Amendment (Public Sector
Improvement) Act 2014
No. 6 of 2014
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1 Purpose 1
2 Commencement 2
PART 2—AMENDMENTS RELATING TO THE VICTORIAN
PUBLIC SECTOR COMMISSION 3
Division 1—Amendment of Public Administration Act 2004 3
3 Purposes 3
4 Definitions 3
5 Administrative Offices 4
6 Performance review of public service body Heads 4
7 Acting assignment as public service body Head 5
8 Employment and retirement 5
9 Transfer of public service body Head to other duties 5
10 New Part 4 substituted 5
PART 4—VICTORIAN PUBLIC SECTOR
COMMISSION 5
Division 1—The Commission 5
37 Establishment of Commission 5
38 Objectives of Commission 6
39 Functions of Commission—public sector efficiency,
effectiveness and capability 6
40 Functions of Commission—public sector
professionalism and integrity 7
41 Powers of Commission 7
42 Obligations of public sector bodies 8
Division 2—Victorian Public Sector Commissioner 8
43 Appointment of Commissioner 8
44 Terms and conditions of appointment 9
45 Vacancy and resignation 10
46 Removal from office 10
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47 Acting Commissioner 11
48 Functions of Commissioner 12
49 Delegation 12
50 Conflict of interest 13
51 Staff 15
Division 3—Advisory Board 15
52 Establishment and constitution of Advisory Board 15
53 Appointment of members of Advisory Board 16
54 Role and functions of Advisory Board 17
55 Meetings and procedures of Advisory Board 17
Division 4—Inquiries 17
56 Inquiries 17
57 Powers on inquiries 18
58 Procedure and evidence at an inquiry 19
59 Reports of inquiries 19
60 Bodies with judicial or quasi-judicial functions 20
Division 5—Maintaining public sector professionalism and
integrity 20
Subdivision 1—Codes of conduct and standards 20
61 Codes of conduct 20
62 Standards concerning public sector employment
principles 21
63 Oversight of compliance with public sector values,
codes of conduct, public sector employment principles
and standards 22
Subdivision 2—Reviews of employment related actions 23
64 Review of actions 23
65 Recommendations following review 25
Subdivision 3—Registers 26
66 Register of lobbyists 26
67 Register of instruments 26
Division 6—Annual plan, strategic plan and annual report 27
68 Annual plan 27
69 Strategic plan 28
70 Annual report 29
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Division 7—Application of other Acts 29
71 Application of Freedom of Information Act 1982 29
72 Application of Part 7A of Financial Management
Act 1994 29
Division 8—The Commission and the IBAC 30
73 Mandatory notification of corrupt conduct to IBAC 30
74 Consultation prior to notification 30
74A Communication of information to the IBAC 30
74B Commission not to prejudice investigations of the
IBAC 31
11 Repeal of section 111 31
12 New section 118 inserted 31
118 Savings and transitional provisions—Public
Administration Amendment (Public Sector
Improvement) Act 2014 31
13 New Schedule 3 inserted 32
SCHEDULE 3—Savings and Transitional Provisions—
Public Administration Amendment
(Public Sector Improvement) Act 2014 32
1 Definitions 32
2 General transitional provisions 32
3 State Services Authority abolished 33
4 References to the State Services Authority etc. 33
5 Person employed by State Services Authority 34
6 Transfer of records, information and documents 34
7 Codes of conduct and standards 34
8 Performance review of public service body Head 35
9 Systems reviews 35
10 Special inquiries and special review 36
11 Review of actions 37
12 Requirement to provide information 38
13 Recommendation to change or introduce processes 38
14 Other work of State Service Authority 39
15 Register of instruments 39
16 First annual report 39
Division 2—Consequential amendment of other Acts 39
14 Amendment of Charter of Human Rights and
Responsibilities Act 2006 39
15 Amendment of Education and Training Reform Act 2006 39
16 Amendment of Environment Protection Act 1970 40
17 Amendment of Parliamentary Administration Act 2005 40
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18 New section 37 inserted in Parliamentary Administration
Act 2005 41
37 Transitional provision—Public Administration
Amendment (Public Sector Improvement) Act 2014 41
PART 3—OTHER AMENDMENTS TO THE PUBLIC
ADMINISTRATION ACT 2004 42
19 What are public entities? 42
20 New section 13A inserted 42
13A Responsibility of Department Heads—public entities 42
21 Remuneration of executives 43
22 New Part 3A inserted 43
PART 3A—ADMINISTRATIVE GUIDELINES 43
36A Administrative guidelines 43
23 Duties of entity 44
PART 4—REPEAL OF AMENDING ACT 45
24 Repeal 45
═══════════════
ENDNOTES 46
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Authorised by the Chief Parliamentary Counsel
Authorised Version
1
Public Administration Amendment
(Public Sector Improvement) Act 2014†
No. 6 of 2014
[Assented to 11 February 2014]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purpose
The main purpose of this Act is to amend the
Public Administration Act 2004—
(a) to provide for the establishment of the
Victorian Public Sector Commission to
replace the State Services Authority and to
provide for its governance, functions and
powers; and
Victoria
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Authorised by the Chief Parliamentary Counsel
(b) to set out the responsibilities of Departments
in relation to public entities falling within
their Ministers' portfolios; and
(c) to make other miscellaneous amendments.
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 July 2014, it comes into
operation on that day.
__________________
s. 2
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PART 2—AMENDMENTS RELATING TO THE VICTORIAN
PUBLIC SECTOR COMMISSION
Division 1—Amendment of Public Administration
Act 2004
3 Purposes
For section 1(b) of the Public Administration
Act 2004 substitute—
"(b) establish the Victorian Public Sector
Commission.".
4 Definitions
In section 4(1) of the Public Administration Act
2004—
(a) the definition of Authority is repealed;
(b) in the definition of code of conduct, for
"section 63" substitute "section 61";
(c) in the definition of public service body, for
paragraph (c) substitute—
"(c) the Victorian Public Sector
Commission;";
(d) in the definition of public service body
Head, for paragraph (c) substitute—
"(c) in relation to the Victorian Public
Sector Commission—the Victorian
Public Sector Commissioner;";
s. 3
See:
Act No.
108/2004.
Reprint No. 4
as at
1 July 2013
and
amending
Act No.
81/2012.
LawToday:
www.
legislation.
vic.gov.au
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(e) in the definition of standard, for
"section 64(5) or 66(2)" substitute
"section 62(1)";
(f) insert the following definitions—
"Commission means the Victorian Public
Sector Commission established under
section 37;
Commissioner means the Victorian Public
Sector Commissioner appointed under
section 43;
Councillor has the same meaning as it has in
section 3(1) of the Local Government
Act 1989;".
5 Administrative Offices
In the note at the foot of section 11 of the Public
Administration Act 2004 for "State Services
Authority" (wherever occurring) substitute
"Victorian Public Sector Commission".
6 Performance review of public service body Heads
(1) In section 17(1) of the Public Administration
Act 2004—
(a) for "State Services Authority" substitute
"Victorian Public Sector Commission";
(b) after "public service body Head" insert
"(other than the Victorian Public Sector
Commissioner)".
(2) In section 17(2) of the Public Administration
Act 2004 for "State Services Authority"
substitute "Victorian Public Sector Commission".
s. 5
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7 Acting assignment as public service body Head
For section 19(4) of the Public Administration
Act 2004 substitute—
"(4) This section does not apply to the Victorian
Public Sector Commission or the Victorian
Public Sector Commissioner.".
8 Employment and retirement
In section 20(3)(d) of the Public Administration
Act 2004 for "Public Sector Standards
Commissioner" substitute "Victorian Public
Sector Commission".
9 Transfer of public service body Head to other duties
In section 29(1) of the Public Administration
Act 2004 for "State Services Authority"
substitute "Victorian Public Sector
Commissioner".
10 New Part 4 substituted
For Part 4 of the Public Administration Act
2004 substitute—
"PART 4—VICTORIAN PUBLIC SECTOR
COMMISSION
Division 1—The Commission
37 Establishment of Commission
(1) The Victorian Public Sector Commission is
established.
(2) The Commission is to be constituted by the
Victorian Public Sector Commissioner.
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38 Objectives of Commission
The objectives of the Commission are—
(a) to strengthen the efficiency,
effectiveness and capability of the
public sector in order to meet existing
and emerging needs and deliver high
quality services; and
(b) to maintain, and advocate for, public
sector professionalism and integrity.
39 Functions of Commission—public sector
efficiency, effectiveness and capability
(1) In order to give effect to the objective
specified in section 38(a), the Commission
has the following functions—
(a) to assess and provide advice and
support on issues relevant to public
sector administration, governance,
service delivery and workforce
management and development;
(b) to conduct research and disseminate
best practice in relation to public sector
administration, governance, service
delivery and workforce management
and development;
(c) to collect and report on whole of
government data;
(d) to conduct inquiries as directed by the
Premier (see Division 4).
(2) Without limiting subsection (1), the
Commission—
(a) must perform any work falling within
its functions under subsection (1)(a),
(b) or (c) as requested by the Premier;
and
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(b) may perform any work falling within its
functions under subsection (1)(a), (b) or
(c) as requested by a Minister or a
public sector body.
40 Functions of Commission—public sector
professionalism and integrity
(1) In order to give effect to the objective
specified in section 38(b), the Commission
has the following functions—
(a) to advocate for an apolitical and
professional public sector;
(b) to issue and apply codes of conduct and
standards (see sections 61 and 62);
(c) to monitor and report to public sector
body Heads on compliance with the
public sector values, codes of conduct,
and public sector employment
principles and standards (see
section 63);
(d) to review employment related actions
and make recommendations following
those reviews (see sections 64 and 65);
(e) to maintain a register of lobbyists and a
register of instruments (see sections 66
and 67).
(2) In performing a function specified in
subsection (1)(a), (b), (c) or (d), the
Commission is not subject to Ministerial
direction or control.
41 Powers of Commission
(1) Subject to this Act, the Commission has
power to do all things necessary or
convenient to be done for or in connection
with the performance of its functions under
this Act or any other Act.
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(2) Without limiting subsection (1), the
Commission may require a public sector
body to provide any document or
information required by the Commission in
connection with the performance of its
functions.
(3) The Commission may specify the form in
which information required under
subsection (2) is to be provided.
(4) Information required to be provided to the
Commission under subsection (2) may
include personal information about an
employee of the public sector body.
42 Obligations of public sector bodies
(1) A public sector body must cooperate with the
Commission in the performance by the
Commission of any of its functions.
(2) A public sector body must—
(a) provide to the Commission any
document and any information required
under section 41(2); and
(b) in the case of information required to
be provided in a form specified under
section 41(3), provide the information
in that form.
Division 2—Victorian Public Sector
Commissioner
43 Appointment of Commissioner
(1) The Governor in Council, on the
recommendation of the Premier, may appoint
an eligible person as the Victorian Public
Sector Commissioner.
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(2) A person is eligible to be appointed under
subsection (1) if the Premier is satisfied that
the person has appropriate knowledge and
experience in one or more of the fields of
public administration, governance, law,
public policy or senior management.
(3) A person is not eligible to be appointed
under subsection (1) if the person is
currently—
(a) a member of the Parliament of Victoria;
or
(b) a member of the Parliament of the
Commonwealth, another State or a
Territory; or
(c) a Councillor; or
(d) a Department Head.
44 Terms and conditions of appointment
(1) The Commissioner is appointed on the terms
and conditions (including the remuneration
and allowances) that are specified in the
instrument of appointment.
(2) The terms and conditions may provide for
the appointment of the Commissioner on a
full-time or part-time basis.
(3) Subject to this Part, the Commissioner—
(a) holds office for a period of not less than
3 years and not more than 5 years, as
specified in the instrument of
appointment; and
(b) is eligible for re-appointment.
(4) Except with the written permission of the
Premier, the Commissioner must not—
(a) engage in any other employment; or
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(b) carry on any business, profession or
trade; or
(c) hold any other office or position, paid
or unpaid.
45 Vacancy and resignation
The Commissioner ceases to hold office if he
or she—
(a) resigns by written notice given to the
Premier; or
(b) becomes an insolvent under
administration; or
(c) is convicted of—
(i) an indictable offence; or
(ii) an offence that, if committed in
Victoria, would be an indictable
offence; or
(d) nominates for election to the Parliament
of Victoria or of the Commonwealth or
of another State or a Territory or for
election as a Councillor; or
(e) is employed as a Department Head; or
(f) is removed from office under
section 46.
46 Removal from office
(1) The Governor in Council, on the
recommendation of the Premier, may remove
the person appointed as Commissioner from
office.
(2) The Premier may only recommend the
removal from office of the person appointed
as Commissioner if the Premier is satisfied
that the person is unfit to hold the office
because of incapacity or misconduct or
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because the person has brought the
Commission into disrepute.
47 Acting Commissioner
(1) The Governor in Council, on the
recommendation of the Premier, may appoint
an eligible person to act in the office of the
Commissioner—
(a) during a vacancy in that office; or
(b) during a period when the
Commissioner is absent from duty or is,
for any reason, unable to perform the
duties of the office.
(2) An appointment under subsection (1) is for
the period, not exceeding 12 months,
specified in the instrument of appointment.
(3) Subject to subsection (5), the Premier may
by instrument appoint an eligible person to
act in the office of the Commissioner—
(a) during a vacancy in that office; or
(b) during a period when the
Commissioner is absent from duty or is,
for any reason, unable to perform the
duties of the office.
(4) An appointment under subsection (3) is for
the period, not exceeding 3 months, specified
in the instrument of appointment.
(5) The Premier must not make more than one
appointment under subsection (3) in relation
to the same vacancy or absence.
(6) The appointment of an Acting Commissioner
under this section is on the terms and
conditions (including the remuneration and
allowances) that are specified in the
instrument of appointment.
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(7) A person is eligible to be appointed to act in
the office of the Commissioner if the person
would be eligible to be appointed as the
Commissioner under section 43.
(8) An Acting Commissioner has all the powers
and functions of the Commissioner and in
exercising those powers and performing
those functions is subject to the same
requirements that apply to the
Commissioner.
48 Functions of Commissioner
(1) The Commissioner has—
(a) all the powers and functions of the
Commission conferred on it by or under
this or any other Act; and
(b) any other powers or functions conferred
on the Commissioner by or under this
or any other Act.
(2) All acts or things done by the Commissioner
in the name or on behalf of the Commission
are taken to have been done by the
Commission.
49 Delegation
(1) The Commissioner may by instrument
delegate any power or function of the
Commissioner under this or any other Act
(other than a power or function specified in
subsection (2)) to—
(a) a member of the staff of the
Commission; or
(b) a person engaged by the Commission to
assist the Commission in the
performance of its functions.
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(2) The following powers of the Commissioner
are not delegable—
(a) a power of delegation under
subsection (1);
(b) the power under section 17 to review
the performance of a public service
body Head;
(c) the power under section 59 to report on
the conduct and findings, and any
recommendations, of an inquiry;
(d) the power under section 61 to issue
codes of conduct;
(e) the power under section 62 to issue
employment standards;
(f) the power under section 63 to make
recommendations in relation to the
oversight of public sector compliance
with the public sector values, codes of
conduct, the public sector employment
principles and standards;
(g) the power under section 65 to make
recommendations following a review of
an employment related action
conducted by the Commission under
section 64.
50 Conflict of interest
(1) If the Commissioner considers that he or she
has a conflict of interest in any matter that is
the subject of an inquiry, a review of an
employment related action or any other
activity required or requested to be
conducted by the Commission, the
Commissioner must—
(a) decline to conduct the inquiry, review
or other activity; and
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(b) notify the Secretary to the Department
of Premier and Cabinet of the conflict
of interest.
(2) On being notified by the Commissioner
under subsection (1)(b) of a conflict of
interest, the Secretary must authorise a
person—
(a) to conduct the inquiry, review or
activity; and
(b) in the case of an inquiry or a review of
an employment related action, to make
recommendations following the inquiry
or review.
(3) The Secretary must not authorise a person
under subsection (2) unless—
(a) the Secretary is satisfied that—
(i) the person is qualified to be
authorised because the person has
appropriate knowledge and
experience in one or more of the
fields of public administration,
governance, law, public policy or
senior management; and
(ii) the person is unconnected with the
matter of the inquiry, review or
activity and does not have a
conflict of interest in the matter;
and
(b) in the case of an authorisation to
conduct an inquiry, the Premier has
approved the authorisation of the
person.
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(4) In conducting an inquiry, a review of an
employment related action or another
activity, a person authorised under
subsection (2)—
(a) may exercise all the relevant powers
and functions of the Commissioner; and
(b) in exercising those powers and
performing those functions is subject to
the same requirements that would apply
to the Commissioner.
(5) An inquiry, a review of an employment
related action or another activity conducted
by a person authorised under subsection (2)
is not invalid by virtue of a defect or
irregularity in, or in connection with, the
authorisation.
51 Staff
(1) Any employees that are necessary to enable
the Commission to perform its functions may
be employed under Part 3 of the Public
Administration Act 2004.
(2) The Commission may engage any contractor,
agent or other person to assist in the
performance of the functions of the
Commission.
Division 3—Advisory Board
52 Establishment and constitution of
Advisory Board
(1) The Advisory Board is established.
(2) The Advisory Board consists of—
(a) the Secretary to the Department of
Premier and Cabinet; and
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(b) other members appointed by the
Premier under section 53.
53 Appointment of members of Advisory
Board
(1) The Premier may by instrument appoint not
more than 7 persons as members of the
Advisory Board.
(2) In appointing members of the Advisory
Board, the Premier must have regard to the
mix of knowledge, skills and experience of
the members of the Advisory Board,
including those pertaining to the public
sector, business, service delivery and
regional matters.
(3) The appointment of a member of the
Advisory Board appointed under
subsection (1)—
(a) is for the period, not exceeding 3 years,
specified in the instrument of
appointment; and
(b) subject to subsection (5), is on the
terms and conditions specified in the
instrument of appointment.
(4) A person appointed as a member of the
Advisory Board is eligible for
re-appointment.
(5) A public sector employee appointed to the
Advisory Board is not entitled to
remuneration in relation to that appointment.
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54 Role and functions of Advisory Board
(1) The role of the Advisory Board is to provide
to the Commission—
(a) advice in relation to the preparation of
the annual plan and strategic plan of the
Commission; and
(b) strategic advice in relation to matters
relevant to the objectives and functions
of the Commission.
(2) The Commission must have regard to the
advice of the Advisory Board—
(a) in the performance of its functions; and
(b) in the development of its annual and
strategic plans.
55 Meetings and procedures of Advisory
Board
(1) The Secretary to the Department of Premier
and Cabinet is the chairperson of meetings of
the Advisory Board.
(2) Subject to this Act, the Advisory Board may
regulate its own procedures.
Division 4—Inquiries
56 Inquiries
(1) The Premier may direct the Commission to
conduct an inquiry into any matter relating to
a public sector body other than—
(a) the IBAC; or
(b) the office of the Ombudsman; or
(c) the Victorian Auditor-General's Office;
or
(d) the Victorian Electoral Commission; or
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(e) the Victorian Inspectorate within the
meaning of the Victorian Inspectorate
Act 2011.
(2) An inquiry may be conducted in relation to a
body even if a provision of an Act other than
this Act has the effect that the body or a
member of the body or of the governing
body (by whatever name called) of the body
is not subject to this Act or to any part of this
Act.
57 Powers on inquiries
(1) A person conducting an inquiry may, in
connection with the inquiry, enter any
premises of a body that is the subject of the
inquiry.
(2) Sections 14, 15, 16 and 21A of the Evidence
(Miscellaneous Provisions) Act 1958 apply
to a person conducting an inquiry as if he or
she were a Board or the Chairman of a Board
appointed by the Governor in Council.
(3) A person is not excused from producing any
document or answering any question at an
inquiry on the ground that the production of
the document or the answering of the
question is prohibited by or under any other
Act.
(4) The production of a document or the
answering of a question, when required at an
inquiry, does not constitute a breach of a
provision made by or under any Act
prohibiting the disclosure of information of a
kind contained in that document or answer.
(5) Nothing in this section abrogates any
privilege or immunity existing by custom or
convention that relates to the production of
documents of previous Governments.
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58 Procedure and evidence at an inquiry
(1) If the person conducting an inquiry agrees, a
person or body may be accompanied to the
inquiry by a legal practitioner or other
person.
(2) The person conducting an inquiry is not
bound by the rules of evidence and may be
informed on any matter in issue at the
inquiry in any manner that he or she
considers appropriate.
(3) The person conducting an inquiry may give
directions as to the procedure to be followed
at or in connection with the inquiry.
59 Reports of inquiries
(1) On the completion of an inquiry, the
Commission must—
(a) within the period required by the
Premier, prepare a report on the
conduct and findings, and any
recommendations, of the inquiry; and
(b) immediately after preparing the report,
provide a copy of the report to—
(i) the Premier; and
(ii) the Minister responsible for any
body that is the subject of the
inquiry.
(2) As soon as practicable after a Minister is
provided with a report under subsection
(1)(b)(ii), the Minister must provide to the
Premier information as to any action taken or
proposed to be taken in relation to the
subject-matter of the report.
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(3) In addition, if the inquiry relates to a special
body, the Minister must cause a copy of the
report, together with information as to any
action taken or proposed to be taken in
relation to the subject-matter of the report, to
be laid before each House of Parliament
within 30 sitting days of that House after the
day on which that Minister was provided
with a copy of the report.
60 Bodies with judicial or quasi-judicial
functions
(1) Nothing in this Division empowers the
Commission to conduct, or the Premier to
direct the conduct of, an inquiry into any
exercise by a body of a function that is of a
judicial or quasi-judicial nature.
(2) The conduct of an inquiry into any matter
relating to a body that exercises functions
that are of a judicial or quasi-judicial nature
must not in any way impede the exercise by
the body of those functions.
Division 5—Maintaining public sector
professionalism and integrity
Subdivision 1—Codes of conduct and
standards
61 Codes of conduct
(1) The Commission must prepare and issue
codes of conduct based on the public sector
values.
(2) The purpose of a code of conduct is to
promote adherence to the public sector
values.
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(3) A code of conduct is binding on any public
official or class of public official to whom it
applies.
(4) Subject to subsection (5), the Commission
may determine to whom a code of conduct
applies.
(5) If a code of conduct is based on public sector
values which a special body is not required
to apply under section 7(2), the Commission
must not apply that code of conduct to the
special body or its employees to the extent
that it relates to those public sector values.
(6) A contravention of a code of conduct by a
public official who is bound by the code is
capable of constituting misconduct.
(7) The Commission may amend and re-issue a
code of conduct or issue a new code of
conduct in substitution for a previously
issued one.
62 Standards concerning public sector
employment principles
(1) The Commission must establish and issue
standards concerning the application of the
public sector employment principles.
(2) Standards issued under subsection (1) are
binding on the public sector bodies to which
they apply and on persons employed in those
bodies.
(3) The Commission may determine to whom a
standard issued under subsection (1) applies.
(4) A public sector body Head must ensure that
persons employed in the body are informed
about the application of the public sector
employment principles and standards issued
under subsection (1).
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63 Oversight of compliance with public
sector values, codes of conduct, public
sector employment principles and
standards
(1) The Commission may make
recommendations to a public sector body
Head on the steps that should be taken to
change or introduce processes in relation to
the public sector body in order to promote or
comply with any of the following, to the
extent that they apply to the public sector
body—
(a) the public sector values;
(b) codes of conduct;
(c) the public sector employment
principles;
(d) standards.
(2) If a public sector body Head has not adopted
a recommendation made under
subsection (1) within 14 days after it is
made, he or she must provide the
Commission with a written statement of
reasons for not adopting the recommendation
within 14 days after the end of that period.
(3) Reasons given to the Commission by a
public sector body Head for not adopting a
recommendation made under subsection (1)
may be included in the annual report of the
Commission.
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Subdivision 2—Reviews of employment related
actions
64 Review of actions
(1) Subject to this section, an employee is
entitled to have an action taken within a
public service body that relates to his or her
employment reviewed in accordance with the
regulations and any standards issued under
section 62.
Notes
1 Public service bodies include offices specified in
section 16(1)—see section 16(2).
2 A review of an employment related action (other
than an initial review) taken in respect of an
employee of the Commission may enliven a
conflict of interest—see section 50.
(2) Unless the regulations otherwise provide, an
employee is only entitled to have a review of
a proposed appointment or promotion on the
ground of a significant deficiency in the
selection process or the process on an initial
review.
(3) Regulations made for the purposes of this
section may—
(a) prescribe exceptions to the entitlement
to a review in circumstances where—
(i) the matter is frivolous, vexatious
or lacking in substance; or
(ii) the applicant does not have
sufficient personal interest; or
(iii) the applicant has not sought an
initial review within the public
service body to which he or she
belongs; or
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(iv) the application is not made within
a specified period; or
(v) the matter is the subject of a
proceeding in any court or tribunal
initiated by the applicant,
including a proceeding under
Division 2 of Part 8 of the Equal
Opportunity Act 2010; or
(vi) the matter could more
appropriately be the subject of a
proceeding in any court or
tribunal, including a proceeding
under Division 2 of Part 8 of the
Equal Opportunity Act 2010;
(b) provide for procedures for a review,
including empowering the appointment
of a person or body to conduct a review
and specifying circumstances in which
the applicant or any other party to a
review may be accompanied by a legal
practitioner or other person;
(c) provide for an initial review to be
conducted within the public service
body to which the employee belongs;
(d) provide for the powers available to the
person or body conducting an initial
review within the public service body
to which the employee belongs;
(e) provide for an application for a review
to be made directly to the Commission
in specified circumstances;
(f) provide for an application for a review
to be referred to the Commission in
specified circumstances on completion
of an initial review within the public
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service body to which the employee
belongs;
(g) provide for the powers available to the
Commission on conducting a review,
including power to require the
appropriate public service body Head to
provide the Commission with
information or documents and power to
interview any employee in the body.
(4) Regulations made for the purposes of this
section—
(a) must not require the Commission to
hold a formal hearing on a review; and
(b) must ensure that the rules of natural
justice are adhered to on a review.
65 Recommendations following review
(1) A person or body (including the
Commission) that has conducted a review
under section 64 may make
recommendations in a report on the review
but does not have power to make any
binding decision as a result of the review.
(2) Without limiting subsection (1),
recommendations under that subsection may
include a recommendation that—
(a) a decision be reconsidered; or
(b) processes within the public service
body be changed.
(3) If the appropriate public service body Head
has not adopted a recommendation made in a
report on a review within 14 days after
receiving the report, he or she must, within
14 days after the end of that period, provide
a written statement of the reasons for not
adopting the recommendation to the
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Commission, the applicant for the review
and any other person affected by the
recommendation.
(4) Reasons given by a public service body Head
for not adopting a recommendation made in
a report of a review may be included in the
annual report of the Commission.
Subdivision 3—Registers
66 Register of lobbyists
(1) The Commission must maintain a register of
lobbyists.
(2) The register must be kept electronically.
(3) The register must be maintained in
accordance with the Victorian Government
Professional Lobbyist Code of Conduct as
issued by the Premier from time to time.
(4) The Commission must ensure, as far as
practicable, that the contents of the register
are accessible to the public at all times
without charge on the Internet.
67 Register of instruments
(1) The Commission must maintain a register of
instruments issued under this Act.
(2) The register must be kept electronically.
(3) The register must contain up-to-date versions
of the following—
(a) any codes of conduct issued by the
Commission;
(b) any standards issued by the
Commission;
(c) any Orders made by the Governor in
Council under Part 5;
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(d) any other instrument issued under this
Act that the Premier directs, in writing,
the Commission to enter in the register.
(4) The Commission may enter additional
material in the register if the Commission
considers that it is likely to be useful to
public sector employees.
(5) The Commission must ensure, as far as
practicable, that the contents of the register
are accessible to the public at all times
without charge on the Internet.
Division 6—Annual plan, strategic plan and
annual report
68 Annual plan
(1) The Commission must prepare an annual
plan before each financial year.
(2) The annual plan must—
(a) set out how the plan relates to, and
supports, the strategic plan of the
Commission; and
(b) specify priority areas for the
forthcoming financial year; and
(c) identify key outputs and specific
activities for each of those areas.
(3) The Commission must consult with the
Advisory Board in the development of its
annual plan to determine the priority areas
and specific activities for the forthcoming
financial year.
(4) Before 1 May of the preceding financial
year, the Commission must submit a draft of
the annual plan to the Premier for approval.
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(5) The Premier must consider the draft of the
annual plan and may approve it—
(a) with or without changes; and
(b) subject to any conditions.
(6) The Premier may, at any time during a
financial year, direct the Commission to
amend the approved annual plan for that
financial year.
(7) The Commission must act consistently with
the annual plan in the performance of its
functions.
69 Strategic plan
(1) The Commission must prepare a three year
strategic plan—
(a) in its first year of operation; and
(b) every third year after that year.
(2) The strategic plan must identify the matters
that present challenges and opportunities for
the public sector and set out how the
priorities of the Commission are to be
strategically aligned with those matters.
(3) The Commission must consult with the
Advisory Board to identify those matters and
determine how the priorities of the
Commission are to be aligned with those
matters.
(4) Before the date fixed by the Premier in
relation to each period of 3 years, the
Commission must submit a draft of the
strategic plan to the Premier for approval.
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(5) The Premier must consider the draft of the
strategic plan and may approve it—
(a) with or without changes; and
(b) subject to any conditions.
(6) The Premier may, at any time during a 3 year
period, direct the Commission to amend the
approved strategic plan for that period.
70 Annual report
The annual report of the Commission's
operations required under Part 7 of the
Financial Management Act 1994 must
include explanations of—
(a) how the operations of the Commission
relate to its objectives; and
(b) how the Commission has achieved the
priorities identified in its annual and
strategic plans.
Division 7—Application of other Acts
71 Application of Freedom of Information
Act 1982
The Freedom of Information Act 1982
applies to, and in respect of, the Commission
as if it were a department within the meaning
of that Act and as if the Commissioner were
the principal officer of the Commission for
the purposes of that Act.
72 Application of Part 7A of Financial
Management Act 1994
Part 7A of the Financial Management Act
1994 applies to, and in respect of, the
Commission as if it were a department
within the meaning of that Act and as if the
Commissioner were the accountable officer
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of the Commission for the purposes of that
Part.
Division 8—The Commission and the IBAC
73 Mandatory notification of corrupt
conduct to IBAC
(1) The Commissioner must notify the IBAC of
any matter of which the Commissioner
becomes aware in the performance of
functions or duties or the exercise of powers
of the Commission under this Act or any
other Act that appears to involve corrupt
conduct.
(2) This section does not apply to corrupt
conduct of the IBAC or IBAC personnel.
74 Consultation prior to notification
For the purposes of deciding whether to
make a notification under this Division to the
IBAC, the Commissioner may consult the
IBAC.
74A Communication of information to the
IBAC
(1) At any time, the Commissioner may provide
or disclose any information received or
obtained in the course of the performance of
functions or duties or the exercise of powers
of the Commission under this Act or any
other Act to the IBAC if the Commissioner
considers that—
(a) the information is relevant to the
performance of the functions or duties
or the exercise of powers of the IBAC;
and
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(b) it is appropriate for the information to
be brought to the attention of the IBAC,
having regard to the nature of the
information.
(2) This section applies subject to any restriction
on the provision or disclosure of information
under this Act or any other Act (including
any Commonwealth Act).
74B Commission not to prejudice
investigations of the IBAC
(1) If the Commission is, or becomes, aware of
an IBAC investigation, the Commission
must take all reasonable steps to ensure that
the performance of its functions or duties or
the exercise of its powers does not prejudice
the IBAC investigation.
(2) For the purpose of ensuring compliance with
subsection (1), the Commission may consult
the IBAC.
__________________".
11 Repeal of section 111
Section 111 of the Public Administration Act
2004 is repealed.
12 New section 118 inserted
After section 117 of the Public Administration
Act 2004 insert—
"118 Savings and transitional provisions—
Public Administration Amendment
(Public Sector Improvement) Act 2014
Schedule 3 has effect.".
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13 New Schedule 3 inserted
After Schedule 2 to the Public Administration
Act 2004 insert—
"SCHEDULE 3
Section 118
SAVINGS AND TRANSITIONAL
PROVISIONS—PUBLIC ADMINISTRATION
AMENDMENT (PUBLIC SECTOR
IMPROVEMENT) ACT 2014
1 Definitions
In this Schedule—
commencement day means the day on which
Part 2 of the Public Administration
Amendment (Public Sector
Improvement) Act 2014 comes into
operation;
new Part 4 means Part 4 of this Act as in
force on and after the commencement
day;
repealed Part 4 means Part 4 of this Act as
in force immediately before the
commencement day.
2 General transitional provisions
(1) Unless the contrary intention appears, this
Schedule does not affect or take away from
the Interpretation of Legislation Act 1984.
(2) If a provision of this Act, as in force before
the commencement day, continues to apply
by force of this Schedule, any other
provision of this Act as in force at that time
necessary to give effect to that continued
provision also continues to apply in relation
to that provision.
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3 State Services Authority abolished
On the commencement day—
(a) the State Services Authority is
abolished; and
(b) a person holding any of the following
offices under the repealed Part 4,
whether substantively or in an acting
capacity, ceases to hold that office—
(i) the chairperson of the State
Services Authority;
(ii) the Public Sector Standards
Commissioner;
(iii) any other member of the State
Services Authority.
4 References to the State Services Authority
etc.
On and after the commencement day, in any
Act, subordinate legislation, order,
agreement, instrument, deed or other
document—
(a) a reference to the State Services
Authority is to be read as a reference to
the Victorian Public Sector
Commission; and
(b) a reference to the chairperson of the
State Services Authority, the Public
Sector Standards Commissioner or any
other member of the State Services
Authority is to be read as a reference to
the Victorian Public Sector
Commissioner; and
(c) a reference to the chief executive
officer acting on behalf of the State
Services Authority is to be read as a
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reference to the Victorian Public Sector
Commissioner.
5 Person employed by State Services
Authority
On the commencement day, a person
employed by the State Services Authority
under Part 3 immediately before the
commencement day is taken to be employed
by the Victorian Public Sector Commission
under Part 3 with the same classification and
remuneration and subject to the same
industrial award or agreement or contract of
employment, and with the same rights to
leave of absence and accrued or accruing
entitlements as applied to the person on his
or her employment immediately before that
day.
6 Transfer of records, information and
documents
All information, documents, reports and
records held by the State Services Authority
immediately before the commencement
day—
(a) are transferred to the Victorian Public
Sector Commission on the
commencement day; and
(b) may be used and relied upon in any
review, inquiry or other work continued
or commenced by the Victorian Public
Sector Commission under this Act.
7 Codes of conduct and standards
(1) On and after the commencement day, a code
of conduct issued by the Public Sector
Standards Commissioner under section 63 of
the repealed Part 4 that is in force
immediately before the commencement day
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is taken to have been issued by the Victorian
Public Sector Commission under section 61
of the new Part 4 and continues to apply to
the class or classes of persons to whom it
applied immediately before the
commencement day.
(2) On and after the commencement day, a
standard issued by the Public Sector
Standards Commissioner under section 64(5)
or 66(2) of the repealed Part 4 that is in force
immediately before the commencement day
is taken to have been issued by the Victorian
Public Sector Commission under section 62
of the new Part 4 and continues to apply to
the class or classes of persons to whom it
applied immediately before the
commencement day.
8 Performance review of public service body
Head
A review of the performance of a public
service body Head conducted by the State
Services Authority under section 17 that is
not completed before the commencement
day must be continued on and after that day
by the Victorian Public Sector Commission
under that section.
9 Systems reviews
(1) Despite the repeal of the repealed Part 4—
(a) a systems review conducted by the
State Services Authority under
section 50 of the repealed Part 4 at the
request of a Minister or a public service
body Head that is not completed before
the commencement day may be
continued under that section on and
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after that day by the Victorian Public
Sector Commission; and
(b) a systems review conducted by the
State Services Authority under
section 50 of the repealed Part 4
required by the Premier that is not
completed before the commencement
day must be continued under that
section on and after that day by the
Victorian Public Sector Commission.
(2) If the Victorian Public Sector Commission
conducts a systems review referred to in
subclause (1), section 51 of the repealed
Part 4 applies to the systems review as if a
reference in that section to the Authority
were a reference to the Victorian Public
Sector Commission.
10 Special inquiries and special review
(1) A special inquiry conducted by the State
Services Authority under section 52 of the
repealed Part 4 or a special review conducted
by the State Services Authority under
section 56 of the repealed Part 4 that is not
completed before the commencement day
must be continued on and after that day by
the Victorian Public Sector Commission as
an inquiry under Division 4 of the new
Part 4.
(2) A power exercised under section 53 or 57 of
the repealed Part 4 in relation to a special
inquiry or special review referred to in
subclause (1) is, on and after the
commencement day, taken to have been
exercised under section 57 of the new Part 4.
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(3) A direction as to procedure given under
section 54(3) or 58(3) of the repealed Part 4
in relation to a special inquiry or special
review referred to in subclause (1) is, on and
after the commencement day, taken to have
been given under section 58(3) of the new
Part 4.
(4) A report prepared in relation to a special
inquiry or a special review under section 55
or 59 of the repealed Part 4 and any
recommendations contained in the report is,
on and after the commencement day, taken
to have been prepared under section 59 of
the new Part 4 and has effect accordingly.
11 Review of actions
(1) A review of an employment related action
conducted under section 64 of the repealed
Part 4 that is not completed before the
commencement day must be continued on
and after that day under Division 4 of the
new Part 4 by—
(a) in the case of a review conducted by the
Public Sector Standards
Commissioner—the Victorian Public
Sector Commissioner; and
(b) in the case of a review conducted by
any other person or body—by that
person or body.
(2) A recommendation made in a report under
section 65 of the repealed Part 4 is, on and
after the commencement day, taken to have
been made under section 65 of the new
Part 4 and has effect accordingly.
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12 Requirement to provide information
(1) On and after the commencement day, a
requirement under section 66(5) of the
repealed Part 4 for a public service body
Head or a public entity Head to provide
information to the Public Sector Standards
Commissioner, is taken to be a requirement
under section 41(2) of the new Part 4 to
provide that information to the Victorian
Public Sector Commission.
(2) On and after the commencement day, a
requirement under section 66(6) of the
repealed Part 4 for a special body Head to
provide information to the Public Sector
Standards Commissioner, is taken to be a
requirement under section 41(2) of the new
Part 4 to provide that information to the
Victorian Public Sector Commission.
(3) Unless the Commission specifies otherwise,
information referred to in subclause (1)
or (2) must be provided to the Commission
in the time and manner specified by the
Public Sector Standards Commissioner under
section 66(5) or (6) (as the case may be) of
the repealed Part 4.
13 Recommendation to change or introduce
processes
On and after the commencement day, a
recommendation by the Public Sector
Standards Commissioner made to a public
service body Head or a public entity Head
under section 66(7) of the repealed Part 4 is
taken to have been made by the Victorian
Public Sector Commission under section
63(1) of the new Part 4 and has effect
accordingly.
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14 Other work of State Service Authority
Work undertaken by the State Services
Authority that is not completed before the
commencement day may be continued on
and after that day by the Victorian Public
Sector Commission.
15 Register of instruments
On and from the commencement day, the
register of instruments kept under section 72
of the repealed Part 4 is taken to be the
register of instruments maintained under
section 67 of the new Part 4.
16 First annual report
The Victorian Public Sector Commission
must include in its first report under Part 7 of
the Financial Management Act 1994 a
report on the operation of the State Services
Authority under the repealed Part 4 during
the relevant part of the financial year.".
Division 2—Consequential amendment of other Acts
14 Amendment of Charter of Human Rights and
Responsibilities Act 2006
In the note at the foot of section 4(1)(a) of the
Charter of Human Rights and Responsibilities
Act 2006 for "the Chief Executive Officer of the
State Services Authority" substitute "the
Victorian Public Sector Commissioner".
15 Amendment of Education and Training Reform Act
2006
In section 2.4.37 of the Education and Training
Reform Act 2006 for "State Services Authority"
substitute "Victorian Public Sector Commission".
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16 Amendment of Environment Protection Act 1970
In section 13(1)(h)(i) of the Environment
Protection Act 1970 for "State Services
Authority" substitute "Victorian Public Sector
Commission".
17 Amendment of Parliamentary Administration Act
2005
(1) In section 4(1) of the Parliamentary
Administration Act 2005—
(a) the definition of Public Sector Standards
Commissioner is repealed;
(b) in the definition of third party for "1968."
substitute "1968;";
(c) insert the following definition—
"Victorian Public Sector Commission
means the Victorian Public Sector
Commission established under
section 37 of the Public
Administration Act 2004.".
(2) In section 19(1) of the Parliamentary
Administration Act 2005 for "section 64(5)"
substitute "section 62".
(3) In section 19(2) of the Parliamentary
Administration Act 2005 omit "an error of law
or".
(4) In section 19(3)(b) of the Parliamentary
Administration Act 2005 for "represented by a
legal practitioner or other agent" substitute
"accompanied by a legal practitioner or other
person".
(5) In section 19(3)(e), (f) and (g) and (4)(a) of the
Parliamentary Administration Act 2005 for
"Public Sector Standards Commissioner"
substitute "Victorian Public Sector Commission".
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(6) In section 19(4)(a) of the Parliamentary
Administration Act 2005 for "review;"
substitute "review; and".
(7) In section 20(1) of the Parliamentary
Administration Act 2005 for "Public Sector
Standards Commissioner" substitute "Victorian
Public Sector Commission".
(8) In section 20(3) of the Parliamentary
Administration Act 2005—
(a) for "does not adopt, or decide to adopt,"
substitute "has not adopted";
(b) for "7 days" substitute "14 days";
(c) for "Public Sector Standards Commissioner"
substitute "Victorian Public Sector
Commission".
18 New section 37 inserted in Parliamentary
Administration Act 2005
After section 36 of the Parliamentary
Administration Act 2005 insert—
"37 Transitional provision—Public
Administration Amendment (Public
Sector Improvement) Act 2014
A review of an employment related action
conducted by the Public Sector Standards
Commissioner under section 19 that is not
completed before the day on which Part 2 of
the Public Administration Amendment
(Public Sector Improvement) Act 2014
comes into operation must be continued on
and after that day by the Victorian Public
Sector Commission.".
__________________
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PART 3—OTHER AMENDMENTS TO THE PUBLIC
ADMINISTRATION ACT 2004
19 What are public entities?
After section 5(1A) of the Public Administration
Act 2004 insert—
"(1B) For the purposes of this Act, a body that
would be a subsidiary, within the meaning of
the Corporations Act, of a public entity if
both the body and the public entity were
bodies corporate to which that Act applies, is
also a public entity.".
20 New section 13A inserted
After section 13 of the Public Administration
Act 2004 insert—
"13A Responsibility of Department Heads—
public entities
(1) For the purposes of this section, a public
entity is a relevant public entity in relation to
a Department Head if the Minister who has
responsibility for the public entity is also a
Minister who has responsibility for the
Department.
(2) A Department Head is responsible for—
(a) advising the public service body
Minister or Ministers on matters
relating to a relevant public entity,
including the discharge by the public
entity of its responsibilities, including
those under this or any other Act; and
(b) working with, and providing guidance
to, each relevant public entity to assist
the entity on matters relating to public
administration and governance.
s. 19
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(3) Unless prohibited from doing so by or under
any law, a relevant public entity must
provide to the Department Head any
information required by the Department
Head to enable the Department Head to
comply with subsection (2)(a).
(4) Nothing in this section authorises or permits
a Department Head to direct or control a
relevant public entity or public entity Head
in the performance of the functions conferred
on the public entity or the public entity Head
under this or any other Act.".
21 Remuneration of executives
Section 25A(b) of the Public Administration Act
2004 is repealed.
22 New Part 3A inserted
After Part 3 of the Public Administration Act
2004 insert—
"PART 3A—ADMINISTRATIVE GUIDELINES
36A Administrative guidelines
(1) The Secretary to the Department of Premier
and Cabinet may issue guidelines in relation
to the administrative operations of a public
service body or a public entity.
(2) Guidelines under subsection (1) may be
issued to—
(a) all public service bodies and public
entities; or
(b) a specified public service body or
public entity; or
(c) a specified class of public service
bodies or public entities.
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(3) If a public service body or a public entity to
which guidelines have been issued under
subsection (1) operates, or intends to operate,
in a manner that is inconsistent with those
guidelines, the relevant public service body
Head or public entity Head must provide
written reasons for doing so to the Secretary
to the Department of Premier and Cabinet.
(4) For the purposes of this section, the
administrative operation of a public service
body or public entity does not include the
exercise by the public service body or public
entity of a discretion in the performance of
its functions.
__________________".
23 Duties of entity
After section 81(1)(d)(iii) of the Public
Administration Act 2004 insert—
"(iv) assessing its own performance; and".
__________________
s. 23
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PART 4—REPEAL OF AMENDING ACT
24 Repeal
This Act is repealed on 1 July 2015.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
═══════════════
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ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 30 October 2013
Legislative Council: 12 December 2013
The long title for the Bill for this Act was "A Bill for an Act to amend the
Public Administration Act 2004 to establish the Victorian Public Sector
Commission to replace the State Services Authority and provide for its
governance, functions and powers and for other purposes."
Endnotes
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