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Last updated: 19 December 2007

Citizenship in the Australian Public Service

Note: This publication replaces Chapter 3 of the bookletConditions of engagement (2005)

Foreword

This booklet covers what Australian Public Service (APS) agency heads, and agency staff more generally, need to know when employing non-Australian citizens as APS employees or when imposing citizenship as a condition of engagement. It outlines issues relevant to citizenship as a condition that may be imposed when engaging APS employees. It also discusses circumstances where APS agencies may wish to engage non-Australian citizens and provides some considerations under migration and citizenship legislation that must be observed by employers generally. It sets out the basic obligations that arise out of the Public Service Act 1999 (the PS Act), as well as requirements that are the responsibility of the Department of Immigration and Citizenship and the Attorney-General’s Department.

The booklet is part of a series of guides issued by the Australian Public Service Commission to complement the PS Act.

Under the PS Act, responsibility for employment decisions has generally been devolved to agency heads, giving them greater flexibility to manage their own workplaces, within the framework of the PS Act and subordinate legislation. These guides should therefore be regarded as providing assistance to agency heads and their senior managers in exercising their authority under the Act. This booklet also provides general guidance to human resources practitioners and line managers on their obligations under the Act in regard to recruitment and related issues.

The decision to impose a condition on a person’s engagement lies with the employing agency head. Decisions such as these, as well as the decision to waive citizenship as a condition of engagement, are commonly delegated to an appropriate person in the agency (usually all Senior Executive Service staff).

This publication replaces advice relating to citizenship as a condition of engagement contained in the booklet Conditions of Engagement 2005 and updated in May 2006.

For further information on conditions of engagement, agencies’ human resources practitioners and senior managers may contact the Commission's Employment Policy Adviceline by telephone (02 6202 3859) or by email (employmentadvice@apsc.gov.au). It may be appropriate for more complex or sensitive queries to be dealt with in writing.  Individual employees should raise any questions with the relevant area in their own agency.  Agencies can also access information through the Commission's website (www.apsc.gov.au).

The Commission would like to thank the Department of Immigration and Citizenship and the Attorney-General's Department for their contributions to this publicationNext page: Message from the Commissioner

1. Introduction

Under the Public Service Act 1999 (the PS Act), an agency head has, on behalf of the Commonwealth, all the rights, duties and powers of an employer in respect of APS employees in the agency (section 20). Their decisions must, of course, comply with the requirements of the PS Act and the various instruments issued under the Act including Public Service Regulations 1999 (the PS Regulations) and the Public Service Commissioner's Directions (the Directions). Employment decisions must also take account of the requirements of the Workplace Relations Act 1996 (WR Act), administrative law, the common law of employment and, in this instance, migration and citizenship legislation.

The key points to note are that an agency head can:

Agencies must notify prospective employees, in advance, of any conditions applying to the person’s engagement.

1.1 Scope of this booklet

This booklet provides guidance on citizenship as a condition of engagement that can be imposed, or waived, by agencies in accordance with the PS Act. It also sets out related requirements that are the responsibility of the Department of Immigration and Citizenship and the Attorney-General’s Department.  In addition, there is a set of frequently asked questions relevant to citizenship and related matters, as well as a check list to help agencies to work through these issues.

While probation, formal qualifications, security and character clearances and health assessments are also conditions of engagement as set out in the PS Act, they are covered in separate publications and are therefore not addressed in detail in this booklet.

A reference in this booklet to the agency head is also to be read as meaning a delegate of the agency head. The PS Act (under section 78) allows an agency head to delegate their powers and functions to another person.  The booklet Delegations contains additional information.

1.2 Related information

The following publications and resources (found on the Commission’s website at www.apsc.gov.au, unless otherwise indicated) provide information concerning employment and related matters that are directly or indirectly related to the issue of citizenship in the APS:

1.3 Legal advice and legal proceedings relating to the PS Act

The PS Act is interpreted and applied by all APS agencies. It is therefore important that the Australian Public Service Commission is kept fully informed of current legal thinking on the interpretation of the PS Act so that this can inform the advice provided by the Commission to agencies. Agencies are therefore requested to liaise with the Commission when obtaining any legal advice related to the PS Act and forward copies of that advice to the Commission, in line with Clause 10 of the Legal Services Directions. These should be forwarded to:

Legal Services Unit
Australian Public Service Commission
16 Furzer Street
PHILLIP ACT 2606

Agencies are also asked to ensure that the Australian Public Service Commission is notified of any court or Australian Industrial Relations Commission proceedings that raise interpretation of the PS Act framework. The initial point of contact is the Group Manager of Policy Group (ph 02 6202 3833).

2. Legislative framework and general principles

This chapter outlines the legislative framework and general principles relating to section 22(6) of the PS Act regarding conditions of engagement (including citizenship) that may be imposed on APS employees. 

2.1 The legislative framework

The formal framework that applies to conditions of engagement, including Australian citizenship, is:

Other relevant legislation includes:

Agency heads are also responsible for implementing protective security measures, as outlined in the Australian Government Protective Security Manual.  The Attorney-General’s Department has policy responsibility for protective security.

2.2     Imposing conditions of engagement

Section 22 of the PS Act provides an agency head with the power to engage a person as an APS employee (ongoing or non-ongoing) and to impose a condition or conditions on their engagement. Some conditions include: probation; formal qualifications; security and character clearances; and health clearances.

It is important to remember that each condition imposed under section 22(6) of the PS Act is a separate condition of engagement and will therefore have to be met according to the arrangements for that condition. Should an employee's engagement be subject to, for example, three months probation and theirobtaining citizenship within six months, the probation condition will need to be met according to the probation arrangements and the citizenship requirement will need to be met according to the citizenship condition. The employee's engagement will continue to be conditional until each condition attached to that engagement has been satisfied.

For further information on conditional engagements see the booklet Conditions of Engagement.

2.3   Notification to an employee of a condition of engagement

It is important that all conditions, and any time limits imposed, are notified to the employee before they are engaged.  If a condition of engagement is not notified to a prospective employee before engagement, there is no power to impose a condition of engagement retrospectively.

A brief description can be made in the APS Employment Gazette notification (on the APSjobs website at www.apsjobs.gov.au), followed up by more detail on each condition in the supporting selection documentation.

In most cases it will be possible to undertake the necessary pre-employment checks on a prospective employee’s citizenship status before they are engaged. However, if it has been decided to engage a person on the condition they become a citizen after they commence work, they should be fully advised in writing of any such condition before engagement. (See the Ongoing Employment: recruitment and related issues publication for further information on notices of engagement.) If a pre-employment check reveals that a prospective employee will not meet the agency's particular requirements, the agency can decide not to proceed with the engagement.

If a non-citizen does not have the correct visa entitling them to work in Australia, in most cases they cannot be conditionally engaged.  See sections 3.2 to 3.6 in this booklet for further information.

2.4     Assignment of other duties within an agency

It may be that an employee will be assigned other duties within the agency before they have been able to satisfy one or more of their conditions of engagement (eg Australian citizenship).

Generally, a condition of engagement will continue to apply if there is a change of duties, unless the terms of the condition are incompatible with the new duties, or the agency chooses to waive the condition because it is not relevant to the new duties (for instance, a high level security clearance is no longer required). If an employee is assigned new duties, this would generally not affect the condition imposed on engagement that the person obtain Australian citizenship.

2.5     Movement to another agency

It may be that a new employee successfully applies to move to another agency before they have satisfied one or more of their conditions of engagement.

In general, any conditions of engagement should be satisfied before a new employee moves to another agency. However, there may be cases where an agency head does not wish to wait until a particular condition is satisfied before an agreement with the employee to move to the new agency takes effect.

In such a case, the post-move or ‘new’ agency head may choose to waive the condition (for example, if the original agency imposed a more demanding health or security clearance condition than is needed for the new duties). Alternatively, the new agency head may wish to continue the condition.

Whether, as a matter of law, a condition of engagement can continue when an employee moves to another agency depends on the nature of the condition and how it was framed (for example, whether it related just to the specific duties for which the employee was originally engaged or whether it reflects a more general policy requirement such as Government policy regarding Australian citizenship).

If the condition is framed in such a way that it can continue, and the new agency head wishes it to continue, it will provide more certainty for both sides if this is explicitly recorded (for example as part of the agreement to move under section 26 of the PS Act).

Where a condition continues, the employee's employment may be terminated by the new agency head under section 29(3)(f) of the PS Act if the employee fails to meet the condition. (See section 2.6 of this booklet for further information.)

It is the responsibility of the new agency to inquire into the status of the employee's current employment, the presence of any unmet conditions of engagement, and whether any condition or conditions will continue if the employee moves to their agency.

2.6 Consequences of failing to meet a condition of engagement

A person can be engaged and commence employment subject to satisfactorily meeting a condition (or several conditions) of engagement in the future.  If that person subsequently fails to meet a required condition, the agency is able to terminate their employment under section 29(3)(f) of the PS Act (‘failure to meet a condition imposed under subsection 22(6)’). Termination may, however, cause considerable disruption to the employee, the employer and the workplace. Agencies should therefore consider implementing arrangements to ensure that, as far as practical, they are satisfied that a prospective employee meets all the relevant requirements before they are engaged.

Additional information can be found in the booklet Termination of Employment.

2.7     Continuing conditions of employment

In some cases agency heads may want to impose or vary requirements or conditions that an employee must meet on a continuing basis, such as the need to maintain a particular level of security clearance. Such conditions cannot be imposed under section 22(6) as this provision can only be used to impose conditions in connection with the engagement process.

There may be scope to impose or vary requirements applying to existing employees and/or to vary the essential qualifications that apply to the performance of particular duties under other heads of power, for example under section 20 of the PS Act. However, this raises wider issues which are outside the scope of this booklet.

As this is a complex topic, if an agency is considering imposing a new ongoing condition or requirement, it may wish to consider obtaining legal advice.

3. General principles relating to the citizenship requirement

3.1 Citizenship as a condition of engagement

Section 22(6)(b) of the PS Act enables an agency head to impose, as a condition of engagement, a requirement that a person hold Australian citizenship. Section 22(8) requires an agency head not to engage a person who is not an Australian citizen as an APS employee, “unless the agency head considers it appropriate to do so”.

If an agency head decides to require citizenship as a condition of engagement, the agency should use pre-employment checks to satisfy itself that a prospective employee is an Australian citizen. A prospective employee can be asked to provide proof of their Australian citizenship. This might be an Australian passport or notice of evidence of Australian citizenship (usually an Australian citizenship certificate). An Australian birth certificate is not, of itself, proof of Australian citizenship.

There have been a number of changes to the Australian citizenship legislation since it was first enacted and some of the arrangements for non-citizens who wish to acquire Australian citizenship have changed. Some of the more recent changes are:

Documents that can be taken as evidence of Australian citizenship for persons born on or after 20 August 1986 are:

Where a prospective employee is born in Australia on or after 20 August 1986 and is not able to provide one of the above documents, evidence of citizenship can usually be established by providing an Australian birth certificate and one of the following:

Agencies should be aware that since being issued with an Australian passport or notice of evidence of Australian citizenship, a person may have ceased to be an Australian citizen.

For example:

Similarly, a person may provide a current Australian passport but subsequently lost their citizenship after it was issued.

To confirm a person’s Australian citizenship status, the person can make an application for evidence of Australian citizenship with DIAC and provide this to the agency as evidence of their citizenship status.

Further information on Australian citizenship is available from the Australian citizenship website at www.citizenship.gov.au or by calling the citizenship information line on 131 880.

3.2 Engagement of non-citizens

The PS Act indicates a general expectation that people engaged as APS employees will be Australian citizens.  However, non-citizens can be engaged as either ongoing or non-ongoing employees if the agency head considers it appropriate for their agency. Alternatively, it may be appropriate to conditionally engage non-citizens who are actively pursuing Australian citizenship.  Depending on the needs of the agency (for example, the skill or professional qualifications required to perform particular duties) there may be other circumstances where it is also appropriate to engage a non-citizen.

A decision to employ a non-citizen must take account of the requirements of the Migration Act 1958, as outlined in sections 3.3 to 3.8 of this booklet. Agencies should also be aware of the requirements of the Australian Government Protective Security Manual regarding the need for Australian citizenship when seeking a national security clearance for an employee. Part D.6 of the Manual sets out the citizenship requirement for eligibility for a security clearance and the exceptions to that requirement.

If an agency head decides to offer engagement to a non-citizen, it would be good practice to inform the person that the citizenship requirement for employment may vary from one APS agency to another should they seek to move to another agency in the future.  Australian citizenship, as a condition of engagement, cannot be imposed by the new agency if the person is already an APS employee. 

Australia has a number of bilateral agreements in place, some of which include employment agreements relating to the dependants of diplomatic staff. These agreements give such dependants work entitlements in Australia, but they do not guarantee work in the APS. Agency heads will still need to determine that it is appropriate to engage this type of non-citizen.

Where it is considered appropriate to engage a non-citizen, the approval of the agency head or delegate should be documented and retained in the employee's personal records. In addition, when considering whether to grant a security clearance for access to security classified resources, Australian Government protective security policy requires that a record of all decisions to waive citizenship eligibility requirements be maintained (see Part D.6 of the Australian Government Protective Security Manual for more information).

Where an agency intends to engage a permanent resident or a non-citizen who holds a visa with work entitlements, the employee should be informed that if they cease to hold valid work entitlements the agency head can terminate their employment for loss of an essential qualification. Agencies should consider including information to this effect in the person’s letter of engagement. This may help to avoid complications concerning the person’s continued employment in the APS should they fail to meet the ongoing requirements of their visa.

3.3     Implications of the Migration Act 1958

Where a decision is made to offer employment to a non-citizen, the agency head must ensure that the person has the appropriate visa and work entitlements.  

Any decision to employ a non-citizen must take account of the requirements of the migration legislation. The Migration Amendment (Employer Sanctions) Act 2007 amended the Migration Act 1958 to introduce new criminal offences for knowingly or recklessly allowing an illegal worker to work, or referring an illegal worker for work.  An illegal worker is someone from overseas who is not an Australian citizen and is either working in Australia without a visa, or who is working in Australia in breach of their visa conditions.

Each agency head and their agency is responsible for ensuring they implement robust recruitment procedures and practices to meet their obligations under the migration legislation. This is particularly vital under the employer sanctions legislation. Regular checks should be made with DIAC to ensure the person’s visa arrangements have not changed, particularly that relating to work entitlement.

In most instances, only Australian citizens, Australian permanent residents and New Zealand citizens have unrestricted entitlements to employment in Australia, although this right to general employment in Australia does not automatically extend to employment in the APS other than for Australian citizens. (See section 3.8 for visa arrangements for New Zealand citizens and section 3.6 about employment in the APS.) Other people who have entered, or plan to enter, Australia and intend working in Australia must have a visa allowing them to work.

Non-citizens are granted a visa (permission to enter and stay) for a specific purpose that will specify the work entitlements they enjoy, if any, and how long they can lawfully remain in Australia.

It is important to remember that not all visas provide work entitlements, and some may provide limited work entitlements only. It is the responsibility of the employing agency to verify those entitlements.

The types of visa that a non-citizen may possess include:

An employee who is not an Australian citizen must hold appropriate work entitlements to be able to perform duties in the APS. This is an independent legal requirement and applies on an ongoing basis. It applies whether or not a condition relating to Australian citizenship was imposed under the PS Act, and regardless of whether the employee was notified of such a requirement at the time of engagement. The PS Act provides for termination of the employment of an APS employee on this basis (section 29(3)(b)).

3.4     Determining work entitlements

The relevant employer services and publications produced by DIAC are essential reference resources for agencies, especially those relating to checking the work entitlements of prospective employees. DIAC's website (www.immi.gov.au) contains information on employers’ obligations, employer sanctions and the work entitlements of migrants and visitors to Australia.  DIAC’s Visa Entitlement Verification Online (VEVO), available 24 hours a day every day, allows employers to check the work entitlements of a visa holder on line. To conduct a VEVO check, you need to enter the following details from the passport:

The results will be returned almost immediately.

For further information please call DIAC’s Employers’ Immigration Hotline on (free call) 1800 040 070.

3.5     Recruiting outside Australia

There is no APS-wide sponsorship scheme for recruiting non-citizens from overseas for employment in the APS. Agencies should contact DIAC for information on employer sponsorship schemes.

If an agency decides to recruit people from outside Australia, overseas advertising would need to be concurrent with, or occur within four weeks of, a notification in the APS Employment Gazette (www.apsjobs.gov.au) to meet the requirements of the Public Service Commissioner's Directions (Chapter 4 of the Directions).

If a non-citizen overseas applicant is likely to be successful in gaining employment in the APS, the agency should check that the applicant is eligible for temporary or permanent migration to Australia and is able to obtain the appropriate work entitlements before a firm offer is made.

The type of employment offered to a temporary resident visa holder will usually be temporary in nature, that is, a non-ongoing engagement or other arrangement consistent with the person's visa requirements. Agencies should check with DIAC on the specific arrangements for individual visa holders as they can vary from one temporary visa holder to another.

3.6     Imposing a requirement to obtain Australian citizenship

If an agency head chooses to engage a permanent resident, they may require the person to obtain Australian citizenship within a specified time (section 22(6) of the PS Act). This should be advised in writing to the prospective employee before engagement. The condition should state the requirement to obtain Australian citizenship, and specify a timeframe within which citizenship must be obtained. It should be drafted so that the agency can terminate the person's employment at an earlier date if citizenship is refused, or if it becomes clear that citizenship will not be obtained.

An agency should determine a maximum period for attaining citizenship, having regard to the residence requirements that persons must satisfy before they become eligible to apply for Australian citizenship.  The agency's policy may stipulate a maximum period (rather than a specific date) within which citizenship is expected to be obtained for the purposes of conditional engagement.

Further information on residence requirements is available on the citizenship website at www.citizenship.gov.au.  As outlined in section 3.7 below, agencies should note that the residence requirements changed on 1 July 2007 for persons who become permanent residents on or after that date. Agencies should regularly check the citizenship website for any changes in citizenship eligibility requirements.

Most people do not become an Australian citizen until they make the pledge of commitment at a citizenship ceremony. The pledge of commitment must be made within 12 months of approval of their citizenship application. A person who fails to do so may have the approval of their citizenship application cancelled.

An applicant is usually notified of the decision on their citizenship application within one month of lodging their application. If the application is approved, conferral of citizenship usually takes place at a citizenship ceremony within three months of approval. However, this depends on the frequency of ceremonies conducted by local government in the area where the applicant lives.

Where an application for citizenship has been refused or an approval cancelled, the applicant may appeal to the Administrative Appeals Tribunal. Agencies may wish to take this into account when considering the engagement of a person in this circumstance.

3.7     Permanent and temporary resident visa holders

Permanent residence is one of the general eligibility requirements for Australian citizenship. Adult applicants for citizenship by conferral must be permanent residents of Australia. Agencies should bear in mind the time it would take for a temporary resident to apply for and be granted a permanent visa and then fulfil the residence requirements for Australian citizenship. From 1 July 2007, a person will need to have been lawfully resident in Australia for four years immediately before applying for citizenship. The four year period must include at least 12 months as a permanent resident. This means that up to three years of temporary residence can count towards the four years lawful residence requirement.

People who became permanent residents before 1 July 2007 and apply for citizenship before 1 July 2010 must have been physically present in Australia as a permanent resident for a total of two years in the five years before applying, including one year within the two years immediately before applying.

Residence exemptions and discretions may also be available in certain circumstances. These are matters for DIAC. The desire to become an Australian citizen in order to gain employment in the APS is not, of itself, sufficient under policy to warrant the application of the residence discretions. Further information on exemptions and discretions is available on the citizenship website at www.citizenship.gov.au.

Temporary resident visa holders who have work entitlements are not, because of their temporary resident status alone, necessarily excluded from being considered for employment. Generally, however, a temporary resident visa holder would only be eligible for non-ongoing employment opportunities, as they are not in a position to offer themselves as available for ongoing employment.

Agencies need to consider whether it is practical to engage a person conditionally when their employment remains uncertain for a considerable time. When engaging a person holding a temporary resident visa, the employee should be informed that if they cease to hold a valid work entitlement the agency can terminate their employment for the loss of an essential qualification. (See also information about ‘employer sanctions’ at section 3.3.)

If the visa expires or is withdrawn, the PS Act provides for termination of employment on this basis (section 29(3)(b)).

3.8 Visa arrangements for New Zealand citizens

The visa arrangements applying to New Zealand citizens were advised in Australian Public Service Commission Circular 2004/2 Citizenship Provisions Relating to Employment in the Australian Public Service. That material is replicated here, but also includes some updated information.

Under the Trans-Tasman Travel Arrangement, most New Zealand citizens are automatically granted a Special Category Visa (SCV) on arrival in Australia, which enables them to live and work indefinitely in Australia.

Before 26 February 2001, a person holding an SCV was considered to be a permanent resident for the purposes of the (then) Australian Citizenship Act 1948.

New bilateral social security arrangements between Australia and New Zealand were introduced on 26 February 2001. Under these arrangements, New Zealand citizens are still granted an SCV on arrival in Australia and can continue to live and work indefinitely in Australia. However, New Zealand citizens entering Australia on or after 26 February 2001 as the holder of an SCV are no longer considered to be permanent residents for the purposes of the Australian citizenship legislation and for access to certain social security payments.

A limited number of New Zealand citizens continue to be treated as permanent residents for the purposes of the Australian citizenship legislation (and therefore do not need to apply for a permanent residence visa in order to acquire Australian citizenship). They are New Zealand citizens who:

A New Zealand citizen who arrives in Australia on or after 27 February 2001, and who does not fall within one of the three categories above, is required to apply for and acquire a permanent resident visa before being eligible for Australian citizenship by conferral.

For the purposes of selection and engagement in the APS, a New Zealand citizen who has arrived in Australia on or after 27 February 2001 with an SCV, but who does not fall within one of the three categories outlined above, is not to be considered a permanent resident visa holder.

3.9 Holders of dual citizenship

Some Australian citizens also hold citizenship of another country. This is known as dual citizenship. If a person in this position can demonstrate evidence of Australian citizenship, they can be engaged as an APS employee, regardless of other citizenship they may hold at the same time.

Dual citizenship may, however, cause other employment-related issues to arise, for example, if the person is required to obtain a security clearance or to work in an area where their dual citizenship could be seen as giving rise to a conflict of interest. Agency heads will therefore need to be aware of, and manage effectively, recruitment to sensitive jobs. In situations where specific qualifications such as a security clearance are required, agencies should ensure that the person has the necessary clearance before being engaged.

4. Imposing other conditions of engagement

Information relating to other conditions mentioned in section 22(6) of the PS Act, namely, formal qualifications, security and character clearances, and health clearances, can be found in other Commission publications. Agencies should be aware that conditions can be imposed on the engagement of both ongoing and non-ongoing employees.

Probation is the subject of a separate booklet that sets out the basic obligations under the PS Act and the WR Act that agencies must observe when engaging employees subject to a probation condition, and within which they should establish appropriate agency specific arrangements.

5. Frequently asked questions

5.1 What are conditions of engagement?

Conditions of engagement can be imposed by an agency head under section 22(6) of the PS Act when a person is engaged as an APS employee. Section 22(6) makes specific mention of conditions relating to:

Section 22(7) makes it clear that it is possible to impose conditions in addition to those specifically referred to above.

New or potential employees must be alerted to any conditions applying to their engagement. Not meeting these conditions can provide a basis for termination of their employment.

5.2 When can a condition be imposed?

A section 22(6) condition of engagement that has been notified to the prospective employee can only be imposed at the time of the person’s engagement. It cannot be imposed once a person is an APS employee. It therefore cannot be imposed when a person changes APS jobs either 'at level' or through a promotion (in the same agency or in another APS agency).  Agencies should, therefore, advise potential applicants of any pre-requisites before their engagement or movement—usually via the APS Employment Gazette notification of the employment opportunity (at www.apsjobs.gov.au).

5.3 How long can a condition of engagement last?

A section 22(6) condition of engagement generally has a specified timeframe, dictated by the operational needs of the agency and notified to the employee as part of the condition. Once the condition is met, it cannot be re-imposed or re-activated. Each agency head should develop policies for their agency on the application of conditions of engagement which support their business needs and are consistent with the legislative framework.

5.4 Can a condition be imposed after someone has been engaged?

No. A condition of engagement can only be imposed at the time of engaging employees in the APS.

However, this is different from imposing or varying requirements that an employee must meet on a continuing basis. These “essential qualifications” (section 29(3)(b) provides for termination for loss of an essential qualification) are requirements or qualifications that are essential for performing the duties on an ongoing basis. They can include formal educational or professional qualifications, maintaining a particular level of security clearance, or having a valid visa with appropriate work rights. These requirements cannot be imposed under section 22(6) as this provision can only be used to impose conditions in connection with the engagement process. An essential qualification should be stated in the APS Employment Gazette notification, selection documentation or any other advertising.

There may be scope to impose or vary requirements applying to existing employees and/or to vary the essential qualifications that apply to the performance of particular duties under other heads of power, for example under section 20 of the PS Act. As this is a complex topic, if an agency is considering imposing a new ongoing condition or requirement, it may wish to consider obtaining legal advice.

5.5 What happens when a condition is met?

Once a section 22(6) condition of engagement has been met, it cannot be re-imposed or re-activated. Each section 22(6) condition is a separate condition of engagement and will have to be met according to the arrangements for that particular condition. The employee's engagement will continue to be conditional until each condition attached to that engagement has been satisfied. An employee's employment may, similarly, be terminated if they fail to meet one or more conditions.

5.6 What happens if the citizenship condition is not or cannot be met?

If a person's engagement is subject to obtaining citizenship (under section 22(6) of the PS Act), and it becomes apparent that the person has not, or cannot, meet that condition, the person's employment may be terminated on the ground specified in section 29(3)(f) of the PS Act. Section 29(3)(f) specifies ‘failure to meet a condition imposed under subsection 22(6)’ as a ground for terminating the employment of an APS employee.

5.7 Why is there an Australian citizenship requirement for APS jobs?

There is a general expectation that a person who is to be engaged as an APS employee will be an Australian citizen, although non-citizens can be engaged at the agency head’s discretion (section 22(8) of the PS Act). Consistent with the views of other countries, the Australian Government considers that it is appropriate for government employees to be Australian citizens as a demonstration of their commitment to, and long-term stake in, the future of Australia. An agency head may, however, waive this requirement depending on the needs and circumstances of the agency (for example, a shortage of the skills or professional qualifications required to perform particular duties).

5.8 Can an agency employ a non-citizen?

An agency head has the authority under section 22(8) of the PS Act to engage a person who is not an Australian citizen, if the agency head considers this appropriate.  Agency heads do not need to consult with or seek the agreement of the Public Service Commissioner in making such decisions.  Agency heads can delegate this authority (typically, but not necessarily, to SES employees in their agency).

All non-citizens must meet certain requirements under the Migration Act before they can be employed in Australia. A non-citizen is granted a visa or entry rights for a specific purpose that will specify the work entitlements they enjoy, if any, and how long they can legally remain in Australia. If the decision is made to engage a non-citizen, agencies should ensure that the person has, or is eligible for, temporary or permanent residence in Australia, and is able to obtain the appropriate work entitlements, before the delegate engages the prospective employee.  

Once employed, regular checks should be made with DIAC to ensure an employee holding a visa with work entitlements has not had their work rights revoked or that their visa has expired.

If an agency head decides to offer engagement to a non-citizen, it is good practice to inform the person that citizenship requirements for employment may vary from one APS agency to another should they seek to move to another agency in the future.

Where it is considered appropriate to engage a non-citizen, the approval of the agency head or delegate to waive citizenship should be documented and retained on the employee's personal records. In addition, when considering whether to grant a security clearance for access to security classified resources, Australian Government protective security policy requires that a record of all decisions to waive citizenship requirements be maintained (see Part D.6 the Australian Government Protective Security Manual for more information).

5.9 Can an agency head delegate their power to waive citizenship or conditionally engage a non-citizen?

The PS Act (section 78) allows for an agency head to delegate their powers and functions, including the decision to waive citizenship, to another person in the agency.  These powers are usually delegated to all SES staff in the agency (although they can be delegated to other staff in the agency).  See the booklet Delegations for additional information.

5.10 For what reason or reasons can citizenship be waived?

A decision to engage a non-citizen will be guided by, and depend on, the particular needs of the agency. APS agencies vary and there may be a range of circumstances where it is appropriate to engage a non-citizen.  An example is where there is a shortage of a particular skill or professional qualification in the Australian labour market required to perform particular duties. Another example would be where an agency head decides it would be appropriate to waive citizenship for all non-ongoing employees.

5.11   What happens if a non-citizen employee loses their entitlement to work in Australia?

A non-citizen, whether a temporary or permanent resident, who loses their entitlement to work in Australia can have their employment terminated for loss of an essential qualification under section 29(3)(b) of the PS Act. Regular checks should be made with DIAC to ensure the person continues to hold the necessary work entitlements.

When an agency engages a person holding a visa with work entitlements, the employee should be informed that if they cease to have valid work entitlements the agency has the power to terminate their employment. Agencies should consider including a statement to this effect in the letter of engagement. This will help to avoid complications concerning the person’s continued employment in the APS should they fail to meet the ongoing requirements of their visa.

5.12   What are the visa requirements for non-citizens?

There are a number of visa options available to non-Australians who enter or intend to enter Australia and agencies should check with DIAC on individual arrangements. If visitors (and those intending to apply for residence or citizenship) want to work in Australia they must have a visa allowing them to work.  In most instances, only Australian citizens, Australian permanent residents and New Zealand citizens have unrestricted entitlements to employment in Australia, although this right to general Australian employment does not automatically extend to employment in the APS.

If an agency intends engaging a non-citizen they should check DIAC’s Visa Entitlement Verification Online (VEVO) system at www.immi.gov.au which allows employers to check the work entitlements of a visa holder on line. VEVO is available 24 hours a day every day.

5.13   What happens if a prospective employee has received a redundancy benefit from a Commonwealth employer?

It may be possible that a non-citizen was previously employed by the Commonwealth and received a redundancy benefit.  Public Service Commissioner's Direction 4.4 explains the circumstances in which an agency head may engage an employee who has previously received a redundancy benefit from the Commonwealth. In this context, 'Commonwealth employment' includes employment in an APS agency or a non-APS Commonwealth body. The Commission's website (www.apsc.gov.au) contains a list of APS agencies and the Department of Finance and Administration's website at www.finance.gov.au contains a list of other Commonwealth bodies.

Further information on these requirements can be obtained from the Commission website and from the Ongoing Employment: Recruitment and related issues booklets.

5.14   What privacy rules apply when engaging an APS employee?

Personal information obtained as part of the engagement process and subsequent employment in the APS is subject to the requirements of the Privacy Act. ‘Personal information’ may include employment history, medical reports, reports on conduct and work performance, and information about citizenship.

The Information Privacy Principles (IPPs) regulate the way government agencies collect, store, use and disclose information about people. They enable people to access information that agencies keep about them, and allow them to request changes to this information if it is incorrect or out of date. Agencies should advise prospective employees of their rights and obligations under the privacy framework, particularly in relation to the range of matters outlined in IPP 2 regarding the possible use and disclosure of their personal information.

In addition to the IPPs, PS Regulation 9.2 permits an agency head to disclose personal information about an employee to another agency where this is necessary for the performance of the functions of either agency (such as recruitment activity), and to the Public Service Commissioner and the Merit Protection Commissioner where this is necessary for the performance of their duties.

For more information about the privacy framework, see the website of the Office of the Federal Privacy Commissioner at www.privacy.gov.au.

5.15   What if my agency uses a recruitment company?

Where the services of a private recruitment provider are used, it is important that the agency advise its provider of the relevant legal requirements and the agency's engagement policy, including citizenship requirements. It is also worthwhile providing recruitment providers with, or advice on where they can gain access to, the relevant information concerning visa requirements and the migration checklist for employers issued by DIAC for use when recruiting APS employees. The Migration Amendment (Employer Sanctions) Act 2007 also applies to those businesses that operate a referral service such as recruitment agencies. Therefore it is essential that work entitlement checks are completed by the recruitment agency prior to the applicants engagement in the APS.

5.16   Where can I get more information?

For further information on conditions of engagement, agencies’ human resource practitioners and senior managers may contact the Australian Public Service Commission's Employment Policy Adviceline by telephone (02 6202 3859) or by email (employmentadvice@apsc.gov.au). It may be appropriate for more complex or sensitive queries to be dealt with by email.  Agencies can also obtain more information, including relevant publications, on the Commission’s website at www.apsc.gov.au.

Individual employees should raise any questions with the relevant area in their own agency.

For citizenship, visa and migration matters, contact the Department of Immigration and Citizenship or visit their website at www.immi.gov.au or the citizenship website at www.citizenship.gov.au.

Agencies should address any queries on citizenship relating to security matters to the Attorney-General’s Department.

6. Check list

Matters to check when deciding whether or not to engage non-Australian citizens

1. Who decides whether or not to engage non-Australian citizens in the APS, and on what basis can they be employed?

Although it is generally expected that Australian citizens will be employed in the APS, the decision to engage a non-citizen is a matter for each APS agency head (s.22(8) of the Public Service Act 1999). 

Non-citizens can be engaged for either ongoing or non-ongoing jobs.

I have confirmed that my agency’s policy is to engage Australian citizens only. [go to 2 and/or 3 below]

OR

I have confirmed that my agency’s policy is to consider non-Australian citizens for jobs. (go to 4 below)

2. It is my agency’s policy to require Australian citizenship as a condition of engagement. What steps do I need to take when advertising and filling jobs?

My agency’s policy (to engage Australian citizens only) is stated in job advertisements and selection documentation.

I (or the relevant person in my agency) have checked that each applicant is an Australian citizen (see 5 below).

3. It is my agency’s policy to require Australian citizenship but my agency will conditionally engage a non-citizen until citizenship is obtained. What steps do I need to take when advertising and filling jobs?

My agency’s policy (to engage, or conditionally engage, Australian citizens only) is stated in job advertisements and selection documentation.

My agency has decided to engage a person who isn’t a citizen on condition that they seek and obtain Australian citizenship within a specified period.  This has been made clear to the person (including in writing), as has the prospect that should citizenship not be obtained, within the notified timeframe, it can result in their employment being terminated.

I have recorded the temporary waiver decision and timeframe in the employee’s personnel file.

I (or the relevant person in my agency) have checked the person’s visa and confirmed they have the appropriate work entitlements (see 6 below).

4. It is my agency’s policy not to require Australian citizenship as a condition of engagement in all cases. What steps do I need to take when advertising and filling jobs?

I (or the relevant person in my agency) have checked the migration/residency status of each applicant who is not a citizen (see 6 below).

Either

I (or the relevant person in my agency) have decided to engage the person (who is a non-citizen) as an ongoing employee.  I have advised the person that the citizenship requirement is being waived.

or

I (or the relevant person in my agency) have decided to engage the person (who is a non-citizen) as a non-ongoing employee.  I have advised the person that the citizenship requirement is being waived.

I (or the relevant person in my agency) have checked the person’s visa and confirmed they have the appropriate work entitlements (see 6 below).

I have recorded the waiver decision on the employee’s personnel file.

I have advised the person that although citizenship has been waived for this job in this agency, citizenship may be a pre-requisite for other jobs in this or other APS agencies.

5. How does my agency establish whether or not a job applicant is an Australian citizen?

Confirm citizenship by sighting:

Confirm visual identity: confirm that the person before you matches the photograph in the passport, driver’s licence or other identity document they provide.

Note: Since being issued with one of the above documents, a person may have ceased to be an Australian citizen, for example, where they applied for and were granted the citizenship of another country prior to 4 April 2002. If that person had any children under 18 years, those children would have also lost their Australian citizenship unless their other parent was an Australian citizen.

A person can make an application for evidence of Australian citizenship to confirm they are an Australian citizen. The Department of Immigration and Citizenship is the agency responsible for determining a person's Australian citizenship status. Further information about Australian citizenship is available from the Australian citizenship website at www.citizenship.gov.au or by calling the citizenship information line on 131 880.

6. If the person is not an Australian citizen, how does my agency establish if they have the appropriate visa and work rights?

Permanent residents

Confirm visual identity:  confirm that the person before you matches the photograph in the passport, driver’s licence or other identity document they provide.

Check that the person has permanent residence status by:

Verify their permanent residence status if necessary through:

Temporary visa holders

Confirm visual identity: ask to see their passport, confirm that the person before you matches the photograph in the passport they provide.

Verify the person’s entitlement to work in Australia by:

Note: Not all visas entitle a person to work in Australia.

7. What security assessment (if any) is required for citizens and non-citizens?

If the job in question requires a security assessment:

Australian citizenship has been verified prior to clearances being approved.

Australian citizenship is a condition of eligibility for security clearances, unless waived by the agency head/authorised officer. See the Protective Security Manual 2005 for information on the citizenship requirement in respect of security assessments.

or

Citizenship has been waived by the agency head/authorised officer.

See the Protective Security Manual 2005 for information on waiver of the citizenship requirement in respect of security assessments.  Permanent residence status is not an acceptable alternative to the citizenship requirement.

Note: Delays or issues with the security clearance process can occur in the engagement of non-Australians (and some Australian citizens) when they do not possess the required checkable background, which can be up to 10 years for some clearance levels. For example:

Checking can be difficult if some of this time has been spent overseas.

Before making an offer of employment, agencies may want to consider whether the applicant can satisfy this requirement.

Agencies that require the successful applicant to submit to a security assessment either before engagement or as a condition of engagement and be eligible for consideration under existing Australian Government Security guidelines should acquaint themselves with the guidelines before advertising the vacancy.