Merit Protection (Australian Government Employees) Regulations (Amendment) (Cth)
[
I,THE GOVERNOR-GENERAL of the
Commonwealth of Australia, acting with the advice of the Federal Executive
Council, hereby make the following Regulations under the
Dated 21 December 1987
N. M. STEPHEN
Governor-General
By His Excellency’s Command,
Ralph Willis
Minister of State for Industrial Relations
for and on behalf of the
Prime Minister
(a) by omitting the definitions of “Redeployment and Retirement Act” and “Redeployment and Retirement Regulations”; and
(b) by inserting after the definition of “Conciliation and Arbitration Act” the following definition:
“ ‘employee’ has the same meaning as in the
Public Service Act 1922 ;”
[
(S.R. 303/87)—Cat. No. 18/10.12.1987
“25. (1) In this Part, unless the contrary intention appears:
‘appellant’ means:
(a) an officer or employee;
(b) a person employed by an Authority on a permanent basis other than a person whose employment is on probation and whose employment has not been confirmed;
(c) a person employed by an Authority on a temporary basis whose period of continuous service exceeds one year but does not include a person engaged for a specific period or for the completion of a specific task;
who has appealed under a Division of the Public Service Act referred to in subsection 23 (1) of the Act.
‘Authority’ means an authority or body that, immediately before the commencement of section 129 of the Streamlining Act, was a prescribed Commonwealth authority within the meaning of the
Commonwealth Employees (Redeployment and Retirement) Act 1979 ;‘Committee’ means a Redeployment and Retirement Appeal Committee established in accordance with Subdivision D of Division 2 of Part II of the Act;
‘Streamlining Act’ means the
Public Service Legislation (Streamlining )Act 1986.
“(2) In this Part, unless the contrary intention appears, a reference to an appeal is a reference to:
(a) an appeal against the giving of a notice by the Public Service Commissioner under subsection 76l(3) or 76w (3) of the Public Service Act;
(b) an appeal against the giving of a notice by a Secretary under subsection 76w (1) of the Public Service Act;
(c) an appeal against the giving of a notice by an Authority under section 76w of the Public Service Act.
“(3) In this Part, unless the contrary intention appears, a reference to the appropriate authority is:
(a) in relation to an appeal against the giving of a notice by a Secretary—a reference to that Secretary;
(b) in relation to an appeal against the giving of a notice by an Authority—a reference to that Authority; and
(c) in any other case—the Public Service Commissioner.
“(4) In this Part, unless the contrary intention appears, a reference to a provision of Division 8c of Part III of the Public Service Act in relation to an Authority, or to the staff of an Authority, is a reference to that provision in its application in relation to the staff of that Authority or, where the Authority has made other provision in accordance with subsection 129 (2) of the Streamlining Act corresponding to section 76w of the Public Service Act, to that other provision.
“26. (1) Subject to subregulation (2), for the purposes of paragraph 23 (1) (c) of the Act, the appropriate organisation in relation to an appellant is the organisation:
(a) that is registered under the Conciliation and Arbitration Act; and
(b) under the rules of which a person whose work is comparable to that of the appellant is eligible for membership.
“(2) For the purposes of paragraph 23 (1) (c) of the Act, in relation to a person whose work is comparable to that of an appellant who is eligible for membership under the rules of more than one organisation registered under the Conciliation and Arbitration Act, the appropriate organisation is whichever of those organisations has as members the greatest number of persons (whether that number comprises officers, employees or partly officers and partly employees) whose work is so comparable.
“(3) For the purposes of subregulations (1) and (2), where:
(a) the classification of an officer is the same or corresponds to; or
(b) the capacity in which an employee is employed in the Service corresponds to or is the same as;
the classification held or last held by the appellant, or the capacity in which the appellant is or was employed in the Service, as the case may be, the work of that officer or employee is comparable to the work of the appellant.
“(4) For the purposes of paragraph 23 (1) (c) of the Act, in the absence of a nomination by the organisation that is, under subregulation (1) or (2), the appropriate organisation, the Agency, in consultation with the Australian Council of Trade Unions of, shall nominate a person.
“27. (1) Subject to subregulation (3), an appellant may, within 28 days after the end of the period within which he or she was entitled to appeal or within such further period as the Agency may allow for special reasons during that 28 day period, submit to the Agency a statement setting out information relating to the appeal which was not specified in any document by which that appeal was instituted.
“(2) Subject to subregulation (3), where an appropriate authority is notified by the Agency of an appeal against the giving of a notice by that authority, it may, within 28 days after the day on which that authority is so notified or within such further period as the Agency may allow for special reasons during that 28 day period, submit to the Agency a statement setting out information relating to the appeal which was not specified in that notice.
“(3) Subject to regulation 28, where a party to an appeal submits a statement under subregulation (1) or (2), that party shall, as soon as practicable, furnish a copy of that statement to the other party.
“28. (1) Where:
(a) a statement prepared by an appropriate authority for the purposes of subregulation 27 (2) contains information of a medical or psychiatric nature concerning the appellant; and
(b) the Commonwealth Medical Officer advises the appropriate authority that the disclosure of the information to the appellant might be prejudicial to the physical or mental health or well-being of the appellant;
the appropriate authority may exclude that information from the copy of the statement furnished to the appellant under subregulation 27 (3) and give that information instead to a medical practitioner nominated for that purpose by the appellant.
“(2) Where information is excluded under subregulation (1) from a copy of a statement furnished to an appellant, the appropriate authority shall, in a separate document accompanying that copy, indicate:
(a) the nature of the information so excluded; and
(b) that that information may be given to a medical practitioner nominated for that purpose by the appellant.
“(3) Where information is excluded under subregulation (1) from a copy of a statement furnished to an appellant, the appropriate authority shall, in a separate document accompanying the copy of the statement, furnished to the Agency under regulation 27, indicate the information that has been so excluded.
“(4) Where information relating to an appeal is withheld from the appellant by virtue of this regulation, the Committee constituted for the purpose of that appeal shall be so informed and may, notwithstanding any other provision of this regulation, release that information or part of that information to the appellant in such manner and subject to such conditions or limitations as it considers appropriate in the circumstances.
“29. (1) Where a Committee considers that it is impracticable for any evidence in an appeal to be taken by the Committee it may appoint a person, whether a member of the Committee or not, to take that evidence.
“(2) A person appointed under subregulation (1) may, for the purpose of taking evidence in an appeal, administer an oath or affirmation.
“(3) Where a person appointed under subregulation (1) takes evidence in an appeal, the person shall transmit that evidence to the Committee concerned.
“(4) Evidence in an appeal taken by a person appointed under subregulation (1) shall, for the purpose of the hearing and determination of that appeal, be deemed to have been taken by the Committee.
“30. For the purposes of the hearing of an appeal, the Convenor of a Committee may, by writing, summon a person to attend before the Committee or before a person appointed under subregulation 29 (1) to give evidence and to produce such documents (if any) as are referred to in the summons.
“31. (1) Subject to this regulation, a proceeding before a Committee shall be in public.
“(2) Where a Committee is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, that Committee may, by order:
(a) direct that a proceeding take place in private and give directions as to the persons who may be present at that proceeding;
(b) give directions prohibiting or restricting the publication of evidence given before that Committee, whether in public or in private, or of matters contained in documents lodged with, or received in evidence by, that Committee; or
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before that Committee, or of the contents of a document lodged with that Committee, in relation to the proceeding.
“(3) In considering:
(a) whether the hearing of a proceeding should be held in private; or
(b) whether publication, or disclosure to some or all of the parties, of evidence given before a Committee, or of a matter contained in a document lodged with that Committee or received in evidence by it, should be prohibited or restricted;
that Committee shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before it should be held in public and that evidence given before it and the contents of documents lodged with it or received in evidence by it should be made available to the public and to all the parties, but shall pay due regard to any reasons given to it why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.
“32. A person who is party to an appeal before a Committee may be represented at that appeal by an official of an organization within the meaning of the Conciliation and Arbitration Act or, with the approval of the Committee, by some other person.
“33. (1) Where 2 or more appeals have been made, the Committee may, where it is of the opinion:
(a) that the consolidation of the appeals would expedite the hearing and determination of those appeals; and
(b) that consolidation of those appeals would not prejudice any party to one or more of those appeals;
consolidate those appeals and hear them together.
“(2) Where 2 or more appeals are consolidated, the Committee shall cause all other parties to that appeal and the Agency to be notified in writing of that fact as soon as practicable.
“(3) Where 2 or more appeals are consolidated:
(a) each party, other than the appropriate authority, shall have the rights of an appellant;
(b) the Agency shall have the same duties and responsibilities in respect of each party to the appeal; and
(c) the Committee that is to hear the appeal shall inform each party of the name of each other party to the appeal.
“34. (1) No action or proceeding, civil or criminal, lies against a person who is a Convenor or other member of a Committee for or in respect of any act or thing done in good faith by the person in his or her capacity as such a Convenor or member.
“(2) Subject to these Regulations:
(a) a person summoned to attend or appearing before a Committee to give evidence at an appeal; or
(b) an official or other person representing a party at the hearing of an appeal before such a Committee;
has the same protection, and is subject to the same liabilities, in any civil or criminal proceedings, as a witness in proceedings in the High Court.
“35. A Convenor or other member of a Committee shall not take part in the hearing or determination of an appeal where he or she has or has had personal involvement in a matter to be considered in that appeal.
“36. Where a Committee determines an appeal, it shall as soon as practicable cause all parties to the appeal and the Agency to be notified in writing of its decision on the appeal and of the reasons for that decision.”.
1.
Notified in the
2. Statutory Rules 1985 No. 176 as amended to date. For previous amendments
see Note 2 to Statutory Rules 1987 No. 91 andsee also Statutory Rules 1987 No. 91.
Printed by Authority by the Commonwealth Government Printer.
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