This page sets out some criteria that entities may wish to use when selecting an independent adviser to assist in negotiation of resource transfers due to a Machinery of Government (MoG) change.
When should an independent adviser be appointed?
The Machinery of Government Changes Guide identifies the following circumstances when an independent adviser could be appointed:
- a MoG change is large, sensitive or complex, or
- entities foresee, or are having, difficulties reaching agreement on the transfer of resources.
Entities are also encouraged to appoint an independent adviser early in the process where they consider the adviser would aid in the negotiation process, or assist in managing the MoG change more efficiently.
An independent adviser must be appointed in circumstances where milestones are not being met and it is unlikely that the MoG change will be completed within 13 weeks of the commencement date (unless the Government has set a different timeframe to implement the MoG change).
If deemed necessary, an independent adviser should be appointed four weeks after the announcement of a MoG change, once the affected entities have completed their initial due diligence processes. By this time, lead contacts and/or entity Chief Financial Officers (CFOs) are required to advise the Department of the Prime Minister and Cabinet (PM&C), the Department of Finance (Finance) and the Australian Public Service Commission (APSC) of their progress towards meeting the completion date including:
- progress against key milestones
- the status of negotiations
- the existence of any contested issues, and
- engagement with staff and stakeholders.
Role of the independent adviser
The independent adviser’s role is to manage the process of information exchange between the transferring and receiving entities. This may involve managing a detailed examination of all aspects of the function being transferred. However, it is more likely that the independent adviser will be engaged to assist in resolving disagreements over the transfer of resources and staff.
The independent adviser is not a decision maker, but may recommend agency heads/accountable authorities of the affected entities (or their delegates) agree on an equitable and fair amount of resources to support the functions being transferred as well as the functions that remain.
If a matter remains unresolved and meeting the completion date looks in doubt, a recommended position by the independent adviser on the matter must be escalated to a committee chaired by the Secretary of PM&C and comprising the Secretary of Finance and the APS Commissioner (or their delegates).
Engagement of an independent adviser
The engagement of an independent adviser (including the terms of the engagement) should be agreed by the CFOs of the affected entities with the cost of the engagement expected to be shared equally between the affected entities.
Relevant experience for an independent adviser
An independent adviser will be required to make recommendations in a reasonably short timeframe to ensure the MoG change can be completed within 13 weeks of the commencement date. Accordingly, it would be appropriate for the independent adviser to have the following skills and experience:
- significant negotiation or dispute resolution experience
- recent substantial senior experience in, or working closely with, the Australian Public Service entities
- experience in managing operations and budgets
- understanding of the Australian Government budget framework
- experience with implementing complex and/or sensitive MoG changes.
Finance can provide advice to entities around the appointment of advisers, including suitable candidates from both the public and private sector.
