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 and pursuant to section 4 of the
Dated 19 December 1985.
N. M. STEPHEN
Governor-General
By His Excellency’s Command,
Peter Walsh
Minister of State for Finance for and on behalf of the Prime Minister
(S.R. 301/85) Cat No 11/11.12.1985
“8. (1) For the purposes of
paragraph 28 (1) (c) of the Act, but subject to sub-regulation (2), the
appropriate organization to nominate a person is an organization that is
registered under the
(a) where an application has been made by a person under section 87n of the
Public Service Act 1922 ,is an organization that the applicant would be eligible to join if the applicant were engaged in the kind of employment in which the applicant seeks to be engaged; or(b) where an application has been made by a person under section 87p of the
Public Service Act 1922 ,is an organization that the Agency considers appropriate, having regard to the kind of employment in which the applicant is, or might on re-appointment to the Service become, engaged.
“(2) Where an applicant referred to in paragraph (1) (a) is eligible for membership of more than one organization referred to in that paragraph, the appropriate organization is the organization having among its members the larger or largest number of officers engaged in the kind of employment in which the applicant seeks to be engaged.
“9. (1) Subject to sub-regulation
(2), for the purposes of paragraph 33 (c) of the Act, the appropriate
organization to nominate a person to be a member of a Re-integration Assessment
Committee constituted for the purpose of an inquiry into an application made by
an officer employed under Part III or IV of the
“(2) Where the officer referred to in sub-regulation (1) is eligible for membership of more than one organization referred to in that sub-regulation, the appropriate organization is the organization having among its members the larger or largest number of officers engaged in the kind of employment in which the applicant is likely on re-integration to the Service to become engaged.
“10. (1) In this Part, unless the contrary intention appears
(a) a Chief Officer in the Department in which a person last held office or, where that person did not hold office, the Department in which he or she last performed duties; or
(b) where that Department has been abolished a Chief Officer selected by the Public Service Board having regard to the duties last performed in the Service by that person,
as the case requires, shall be taken to be the Chief Officer in respect of a person who—
(c) has been dismissed from the Service under section 62 or 63 of the Public Service Act;
(d) is deemed, under section 66a of the Public Service Act, to have retired from the Service; or
(e) is an unattached officer within the meaning of Subdivision D of Division 6 of Part III of the Public Service Act.
“(2) In this Part, unless the contrary intention appears-
‘Disciplinary Appeal Committee’ means a Disciplinary Appeal Committee established in accordance with Subdivision C of Division 2 of Part II of the Act;
‘proceeding’, in relation to a Disciplinary Appeal Committee, means the hearing of an appeal under section 63d, 63f, 63p or 66b of the Public Service Act or the conduct of a review under section 63g of that Act, or any part of such an inquiry, hearing or review;
‘Public Service Act” means the
Public Service Act 1922 ;‘review’ means a review of a finding or of action taken referred to in section 63g of the Public Service Act, as the case requires;
‘salary’ has the same meaning as in Division 6 of Part III of the Public Service Act.
“11. (1) For the purposes of paragraph 17 (1) (c) of the Act, a person nominated to represent officers shall be
(a) subject to paragraph (b), where the appellant or person requesting a review, as the case may be, is
(i) an officer, other than an officer to whom Subdivision D of Division 6 of Part III of the Public Service Act applies; and
(ii) a member of an organization within the meaning of the
Conciliation and Arbitration Act 1904
a person nominated by that organization:
(b) where the appellant or person requesting a review, as the case may be, is an officer in relation to whom paragraph (a) applies and is a member of 2 or more organizations within the meaning of the
Conciliation and Arbitration Act 1904 —a person nominated by the organization of which the appellant or person is a member selected by that appellant or person in accordance with paragraph (2) (b) or (3) (b), as the case requires; or(c) in any other case—a person nominated by the appellant or person requesting a review from a list of not less than 3 names of persons specified by the Agency having regard to the duties or former duties of the appellant or person requesting a review, furnished to that appellant or person by the Director as soon as practicable after the appeal is delivered to, or received by, the Director in accordance with regulation 141 of the Public Service Regulations or the Agency is satisfied under sub-section 63g (3) of the Public Service Act that the ground of the request is established, as the case may be.
“(2) An appellant in relation to whom paragraph (1) (a) or (b) applies shall notify the Director in writing, as soon as practicable after lodging his or her appeal, of
(a) where the appellant is an appellant in relation to whom paragraph (1) (a) applies other than an appellant in relation to whom paragraph (1) (b) applies—the name of the organization referred to in sub-paragraph (1) (a) (ii) of which the appellant is a member; or
(b) where the appellant is an appellant in relation to whom paragraph (1) (b) applies—the name of the organization referred to in that paragraph which the appellant selects as the organization by which a person shall be nominated for the purposes of paragraph 17 (1) (c) of the Act in relation to the appeal.
“(3) A person requesting a review in relation to whom paragraph (1) (a) or (b) applies shall notify the Director, as soon as practicable after requesting that review, of–
(a) where that person is a person in relation to whom paragraph (1) (a) applies other than a person in relation to whom paragraph (1) (b) applies the name of the organization referred to in sub-paragraph (1) (a) (ii) of which that person is a member; or
(b) where that person is a person in relation to whom paragraph (1) (b) applies the name of the organization referred to in that paragraph which that person selects as the organization by which a person shall be nominated for the purpose of paragraph 17 (1) (c) of the Act in relation to the request.
“(4) An appellant or person requesting a review in relation to whom paragraph (1) (c) applies shall, as soon as practicable after being furnished with the list of names referred to in that paragraph, notify the Director of the name of the person nominated by that appellant or person from that list for the purposes of paragraph 17 (1) (c) of the Act.
“12. (1) Where the Director receives an appeal in accordance with regulation 141 of the Public Service Regulations the Director shall, as soon as practicable–
(a) where the person who appealed has notified the Director of the name of an organization in accordance with sub-regulation 11 (2) obtain from that organization the name and address of the person nominated by that organization to represent officers in accordance with sub-regulation 11 (2) for the purposes of paragraph 17 (1) (c) of the Act;
(b) notify the Chief Officer of the person who appealed that the appeal has been made and furnish that Chief Officer with a copy of the appeal;
(c) obtain from the Chief Officer referred to in paragraph (b) the name and address of the officer nominated by the Chief Officer for the purposes of paragraph 17 (1) (b) of the Act; and
(d) after the names and addresses of the officer nominated for the purposes of paragraph 17 (1) (b) of the Act and the person nominated for the purposes of paragraph 17 (1) (c) of the Act have been obtained by or notified to the Director—refer the appeal together with those names and addresses to a Chairman of a Disciplinary Appeal Committee.
“(2) Where, in relation to a request for a review, the Director is notified under sub-regulation 11 (3) or (4) of the name of an organization or person, the Director shall—
(a) where the person requesting the review has notified the Director of the name of an organization in accordance with sub-regulation 11 (3)—obtain from that organization the name and address of the person nominated by that organization to represent officers in accordance with sub-regulation 11 (1) for the purposes of paragraph 17 (1) (c) of the Act;
(b) notify the Chief Officer of the person requesting the review that the request has been made; and
(c) obtain from the Chief Officer referred to in paragraph (b) the name and address of the officer nominated by the Chief Officer for the purposes of paragraph 17 (1) (b) of the Act.
“(3) Where the Director requests that a Chief Officer referred to in paragraph (1) (b) or (2) (b) provide the Director with a name and address of an officer referred to in paragraph (1) (c) or (2) (c) that Chief Officer shall provide the name and address of that officer to the Director forthwith.
“13. As soon as practicable after a Chairman of a Disciplinary Appeal Committee receives
(a) an appeal referred to that Chairman in accordance with paragraph 12 (1) (d); or
(b) a request for a review referred to the Disciplinary Appeal Committee under sub-section 63g (3) of the Public Service Act,
the Chairman shall, after taking into account
(c) the time it may take to notify the parties to the proceeding; and
(d) the time it may take for the appellant or the person seeking the review to travel to attend the hearing and to prepare his or her case,
proceed to—
(e) fix the date on which and the time and place at which the Disciplinary Appeal Committee will hear the proceeding; and
(f) notify the parties to the proceeding and the officer and the person nominated for the purposes of paragraph 17 (1) (b) or (c) of the Act of that date, lime and place.
“14. Where, under sub-section 19 (1) of the Act, the remaining members of a Disciplinary Appeal Committee are to conduct a proceeding in the absence of the Chairman of that Committee the references in these Regulations to ‘Chairman’ shall be read in relation to that proceeding as references to those members acting together.
“15. (1) Where, in relation to an appeal under section 63d, 63f, 63p or 66b of the Public Service Act, it appears to a Disciplinary Appeal Committee that it is undesirable, by reason of the appellant being stationed outside Australia or in a remote locality in Australia, or by reason of expense, inconvenience or delay, to require the appellant or any particular witness to attend to give evidence before the Disciplinary Appeal Committee hearing the appeal, that Committee may, by order in writing under the hand of its Chairman, appoint some fit and proper person to take the evidence of the appellant or witness.
“(2) A person appointed under sub-regulation (1) shall take any evidence under that sub-regulation on oath or affirmation and, for the purpose of so doing, shall have all the powers of the Disciplinary Appeal Committee that appointed that person.
“(3) Each party to an appeal under section 63d, 63f, 63p or 66b of the Public Service Act who is entitled to be represented before the Disciplinary Appeal Committee hearing the appeal may be represented before any person taking evidence in connection with that appeal in pursuance of this regulation by a legal practitioner or some other person and the legal practitioner or other person may examine witnesses and address the person taking that evidence on behalf of the party whom the legal practitioner or other person represents.
“(4) Evidence taken under this regulation shall be certified under the hand of the person taking it, forwarded to the Disciplinary Appeal Committee that appointed that person and to the parties to the appeal and considered by that Committee as evidence in connection with the appeal in relation to which it was so taken.
“16. (1) Subject to this regulation, a proceeding before a Disciplinary Appeal Committee shall be in public.
“(2) Where a Disciplinary Appeal 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 Disciplinary Appeal 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 theparties, 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.
“17. (1) For the purposes of a proceeding before a Disciplinary Appeal Committee, the Chairman of that Committee may by writing under that Chairman’s hand, summon a person to attend before that Committee to give evidence and to produce such documents (if any) as are referred to in the summons.
“(2) Where a Disciplinary Appeal Committee appoints a person under sub-regulation 15 (1) to take the evidence of an appellant or witness, the
Chairman of that Committee may, by writing under the Chairman’s hand, summon that appellant or witness to appear before the person so appointed to give evidence and to produce such documents (if any) as are referred to in the summons.
“18. (1) Subject to sub-regulation (2), a person summoned to attend at a proceeding before a Disciplinary Appeal Committee shall not, without reasonable excuse—
(a) fail (in the case of a person other than an officer or employee, after tender of reasonable expenses) to attend or to produce documents in accordance with the summons;
(b) at that proceeding refuse to be sworn or to make an affirmation; or
(c) at that proceeding refuse to answer a question, relevant to that proceeding, that the Chairman of that Committee requires that person to answer.
Penalty: $40.
“(2) Nothing in these Regulations shall be construed as requiring a person to answer a question where the answer to that question would tend to incriminate that person.
“19. (1) A person, other than a person referred to in sub-regulation (4), who is summoned to attend, and attends, for the purpose of giving evidence in an appeal to a Disciplinary Appeal Committee and who applies to the Chairman of that Committee for the payment of costs reasonably incurred by that person in relation to that attendance, is entitled to the payment by the Commonwealth to that person of those costs assessed by that Chairman in accordance with the scale applicable to witnesses expenses payable under the Public Works Committee Regulations.
“(2) An assessment made under sub-regulation (1) shall be in writing and shall be furnished to the person in respect of whom it is made.
“(3) An amount payable to a person in accordance with sub-regulation (1) is payable to that person, upon tender of a copy of the assessment referred to in sub-regulation (1), by the Department of the Chief Officer of the appellant or person charged, as the case requires.
“(4) This regulation does not apply to
(a) officers or employees summoned to give evidence; or
(b) witnesses who are summoned at the request of an appellant in respect of whom an order has been made under sub-section 17 (4) of the Act.
“20. (1) A person who is a party to a proceeding before a Disciplinary Appeal Committee is entitled to examine witnesses and address that Committee at that proceeding.
“(2) A person referred to in sub-regulation (1) may be represented at a proceeding referred to in that sub-regulation by a legal practitioner or some other person and the legal practitioner or other person may examine witnesses and address the Committee referred to in that sub-regulation on behalf of the person referred to in that sub-regulation.
“21. (1) An action or proceeding, civil or criminal, does not be against a person who is a Chairman or member of a Disciplinary Appeal 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 Chairman or member.
“(2) A legal practitioner representing a party to a proceeding before a Disciplinary Appeal Committee has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
“(3) Subject to this Part–
(a) a person summoned to attend or appearing before a Disciplinary Appeal Committee to give evidence at a proceeding; or
(b) a person, other than a legal practitioner, representing a party at the hearing of a proceeding before that Committee,
has the same protection, and is, in addition to the penalties provided by this Part, subject to the same liabilities, in any civil or criminal proceedings, as a witness in proceedings in the High Court.
“22. Where a Disciplinary Appeal Committee makes a decision in respect of an appeal under section 63d, 63f, 63p or 66b of the Public Service Act or a request for a review under section 63g of that Act, the Chairman of that Committee shall, as soon as practicable after that Committee has made its decision, notify—
(a) the appellant or person requesting the review;
(b) the Chief Officer of that appellant or person; and
(c) the Public Service Board,
in writing of the decision and of the reasons for that decision.
“23. (1) In this regulation, a reference to a successful appeal includes a reference to an appeal as a result of the determination of which the severity of action taken or to be taken under section 62 or 63 of the Public Service Act in respect of an appellant is reduced.
“(2) Where an appeal to a Disciplinary Appeal Committee is successful the Disciplinary Appeal Committee that heard the appeal shall consider and determine whether the Department of the Chief Officer referred to in paragraph 17 (1) (b) of the Act in relation to the appeal should pay the whole or part of the costs incurred in that appeal by that appellant.
“(3) Where a Disciplinary Appeal Committee determines under sub-regulation (2) that a Department should pay the whole or part of the costs incurred by an appellant in an appeal, that Department shall pay to that appellant the amount that the Disciplinary Appeal Committee has so determined.
“24. (1) Except where an order under sub-section 17 (4) of the Act has been made, where an appeal to a Disciplinary Appeal Committee under section 63d, 63f, 63p or 66b of the Public Service Act lapses because of the death, mental or physical incapacity or compulsory retirement of the appellant, an application for payment of the costs reasonably incurred by the appellant in the appeal may be made to the Director by that appellant or by a person administering that appellant’s affairs or estate under a law of the Commonwealth or of a State or of a Territory, or by a member of that appellant’s family, as the case requires.
“(2) Where, in the case of a lapsed appeal referred to in sub-regulation (1), the Director receives an application under sub-regulation (1), the Director shall refer the application to the Department of the Chief Officer referred to in paragraph 17 (1) (b) of the Act in relation to that appeal and that Department shall pay to the applicant the costs to which the application relates.
“(3) In this regulation, a reference to a member of the family of a person shall be read as including a reference to a parent, spouse, de facto spouse or child of that person, or the spouse or de facto spouse of a child of that person.”.
1.
Notified in the
2. Statutory Rules 1985 No. 176.
Printed by Authority by the Commonwealth Government Printer.
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