Public Service Regulations (Amendment) (Cth)
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I, The Governor-General of the Commonwealth of Australia, acting with the advice
of the Federal Executive Council, make the following Regulations under the
Dated 29 November 1995.
BILL HAYDEN
Governor-General
By His Excellency’s Command,
gary johns
Assistant Minister for Industrial Relations
for the Prime Minister
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1.1 The Public Service Regulations are amended as set out in these Regulations.
[NOTE: These Regulations commence on gazettal: see
2.1 After regulation 164, insert:
For the purposes of subsection 63JA (1) of the Act (which deals with suspension of unattached officers), sections 63B and 63C of the Act (which deal with the suspension of officers other than a Secretary or unattached Secretary and the removal and variation of the suspension, respectively) apply in relation to unattached officers as if they read as set out in Schedule 5.”.
3.1 Add at the end:
“
SECTIONS 63B AND 63C OF THE ACT MODIFIED IN THEIR APPLICATION TO SUSPENSION OF UNATTACHED OFFICERS
(1) If:
(a) either:
(i) an unattached officer has been charged with having committed a criminal offence; or
(ii) an officer authorised for the purposes of subsection 61 (2) has informed the relevant Secretary that the officer has formed the belief, on reasonable grounds, that an unattached officer may have committed misconduct either before becoming, or while, an unattached officer; and
(b) the relevant Secretary is of the opinion that it would be prejudicial to the effective operation of the Service, to the interests of the public or to the interests of the unattached officer or other officers if the unattached officer were:
(i) in the case of an unattached officer who holds an office, but is not performing duties, in the Department—to return to duty in that office; or
(ii) in the case of an unattached officer who does not hold an office, and is not performing duties, in the Department—to return to duty in the Department;
pending the hearing and determination of the criminal charge, the taking of a decision not to charge the unattached officer with misconduct or the hearing and determination of any charge of misconduct laid against the unattached officer, as the case may be;
the relevant Secretary may, by notice in writing delivered to the unattached officer:
(c) in the case of an unattached officer described in subparagraph (b) (i)—either:
(i) direct the unattached officer to perform temporarily other duties that the unattached officer is qualified to perform (whether at the same or a different locality); or
(ii) direct the unattached officer not to return to duty in the department; or
(d) in the case of an unattached officer described in subparagraph (b) (ii)—direct the unattached officer not to return to duty in the department.
If:
(a) either:
(i) an unattached officer has been convicted of a criminal offence; or
(ii) without recording a conviction, a court has made a finding that an unattached officer has committed a criminal offence; and
(b) the unattached officer is not subject to a direction under subsection (1);
the relevant Secretary may, by written notice given to the unattached officer:
(c) in the case of an unattached officer described in subparagraph (1) (b) (i)—either:
(i) direct the unattached officer to perform temporarily other duties that the unattached officer is qualified to perform (whether at the same or a different locality); or
(ii) direct the unattached officer not to return to duty in the department; or
(d) in the case of an unattached officer described in subparagraph (1) (b) (ii)—direct the unattached officer not to return to duty in the department.
A Secretary is not authorised to give a direction under subparagraph (2) (c) (ii) or paragraph (2) (d) unless the Secretary is of the opinion that it would be prejudicial to:
(a) the effective operation of the Service; or
(b) the interests of the public, the unattached officer or other officers;
if the unattached officer were to return to duty in the Department pending the making of a decision under section 63M in relation to the unattached officer.
“(4)A Secretary is not authorised to give a direction under subparagraph (1) (c) (ii), paragraph (1) (d), subparagraph (2) (c) (ii) or paragraph (2) (d) unless:
(a) the Secretary has first given the unattached officer an opportunity to be heard; or
(b) the Secretary is of the opinion that it would not be appropriate, in the particular circumstances, to give the unattached officer an opportunity of that kind.
Except as provided by subsection (6), (7) or (8) or by section 63C, an unattached officer to whom a direction is given under subparagraph (1) (c) (ii), paragraph (1) (d), subparagraph (2) (c) (ii) or paragraph (2) (d) is not entitled to be paid salary in respect of the period during which the unattached officer is not performing duty in the department.
If an unattached officer is given a direction under subparagraph 1 (c) (ii) or paragraph (1) (d) because of circumstances referred to in subparagraph (1) (a) (ii) before a decision is made whether or not the unattached officer is to be charged with misconduct, the unattached officer is entitled to be paid salary throughout the period commencing at the time of the giving of the direction and ending:
(a) if an officer authorised for the purpose of subsection 61 (2) decides that the unattached officer should not be charged—at the time when that decision is made; or
(b) in any other case—at the time when the unattached officer is charged.
If a direction is given to an unattached officer under subparagraph (1) (c) (ii), paragraph (1) (d), subparagraph (2) (c) (ii) or paragraph (2) (d) at a time when the unattached officer is absent on leave of absence, the direction does not prevent the unattached officer receiving any salary to which the unattached officer is entitled in respect of that period of leave of absence.
“(8)A direction under subparagraph (1) (c) (ii), paragraph (1) (d), subparagraph (2) (c) (ii) or paragraph (2) (d) does not prevent the granting to the unattached officer of leave of absence with salary.
“(9)An unattached officer to whom a direction is given under subparagraph (1) (c) (ii), paragraph (1) (d), subparagraph (2) (c) (ii) or paragraph (2) (d) is entitled to engage in employment outside the Service during any period during which an unattached officer is directed not to return to duty in the department other than a period during which the unattached officer is receiving salary under this Act.
(1) If an unattached officer has been given a direction under subparagraph 63B (1) (c) (ii), paragraph 63B (1) (d), subparagraph 63B (2) (c) (ii) or paragraph 63B (2) (d), the direction may be revoked in accordance with this section, but, subject to paragraph 63R (1) (e), must not otherwise be revoked or rescinded.
If an unattached officer is given a direction under subparagraph 63B (1) (c) (ii), paragraph 63B (1) (d), subparagraph 63B (2) (c) (ii) or paragraph 63B (2) (d):
(a) the relevant Secretary may:
(i) revoke the direction at any time, upon application by the unattached officer or otherwise; or
(ii) if the relevant Secretary is satisfied that the unattached officer is suffering or has suffered hardship—subject to any determination under section 82D, direct that the unattached officer be paid the whole or part of the unattached officer’s salary for the whole or part of the period during which the direction is in force; and
(b) if the direction continues in force for more than 30 days, the relevant Secretary must consider, immediately after the 30th day after the giving of the direction, whether:
(i) the direction should be revoked; or
(ii) a direction of the kind referred to in subparagraph (a) (ii) should be given.
If, after an unattached officer has been given a direction under paragraph 63B (1) (c) or (d) in circumstances referred to in subparagraph 63B (1) (a) (ii):
(a) the unattached officer is charged with misconduct, or with 2 or more acts of misconduct, and the charge or each charge is found not to have been proved by the officer holding the inquiry or by a Disciplinary Appeal Committee or is withdrawn; or
(b) an officer authorised for the purposes of subsection 61 (2) decides that the unattached officer should not be charged with misconduct;
the relevant Secretary must revoke the direction where the direction has not previously been revoked.
If:
(a) an unattached officer has, by reason of having been charged with a criminal offence or with 2 or more criminal offences, been given a direction under paragraph 63B (1) (c) or (d); and
(b) a condition specified in subsection (5) is fulfilled in respect of the charge or of each of the charges;
the relevant Secretary must revoke the direction where the direction has not previously been revoked.
For the purposes of paragraph (4) (b), the conditions in respect of a charge are:
(a) the condition that, upon the hearing of the charge, the unattached officer neither pleads guilty to the charge nor is found guilty of the criminal offence with which the unattached officer is charged or of any other criminal offences established by the evidence given upon the hearing of the charge; and
(b) the condition that the charge is not proceeded with.
Subject to subsection (7), if:
(a) an unattached officer has been given a direction under subparagraph 63B (1) (c) (ii) or paragraph 63B (1) (d); and
(b) an amount of salary that would otherwise have been paid to the unattached officer in respect of the whole, or a part, of the period during which the direction was in force was not payable to the unattached officer; and
(c) the direction is required to be revoked under subsection (3) or (4) or would have been required to be revoked had it not previously been revoked;
the relevant Secretary must authorise payment to the unattached officer of an amount equal to the amount of salary referred to in paragraph (b).
If the relevant Secretary is satisfied that an unattached officer to whom subsection (6) applies has engaged in employment outside the Service during the whole, or a part, of the period during which the direction was in force, the amount payable to the unattached officer under that subsection must be reduced by an amount equal to the total of the amounts of the earnings that the relevant Secretary is satisfied were received or are receivable by the unattached officer in respect of that employment or work.
A relevant Secretary may request an unattached officer to whom subsection (6) applies to furnish to the Secretary, in writing:
(a) particulars of any employment outside the Service in which the unattached officer has engaged during the whole, or a part, of the period during which the direction was in force; and
(b) particulars of the total amounts of the earnings that were received or are receivable by the unattached officer in respect of that employment;
and may defer authorising payment to the unattached officer under subsection (6) until those particulars have been furnished.
If:
(a) an unattached officer has been given a direction under subparagraph 63B (1) (c) (ii), paragraph 63B (1) (d), subparagraph 63B (2) (c) (ii) or paragraph 63B (2) (d), and after the giving of the direction has sought and been granted leave of absence for a part of the period of during which the direction was in force; and
(b) the direction is required to be revoked under subsection (3) or (4), or would have been required to be revoked if it had not already been revoked;
the unattached officer is entitled to a credit of a period of leave of absence equal to that part of the period during which the direction was in force.
If an unattached officer to whom a direction has been given under subparagraph 63B (1) (c) (ii), paragraph 63B (1) (d), subparagraph 63B (2) (c) (ii) or paragraph 63B (2) (d) is dismissed from the Service, the period during which the direction was in force does not count as service for any purpose.
If an unattached officer retires from the Service or dies during the period during which a direction given under subparagraph 63B (1) (c) (ii), paragraph 63B (1) (d), subparagraph 63B (2) (c) (ii) or paragraph 63B (2) (d) is in force in relation to the officer, the Commissioner must determine whether the whole, or any part, of that period is to form part of the unattached officer’s period of service for any purpose under this Act or any other Act, and, if so, the purposes for which it is to form part of the unattached officer’s period of service.
If an unattached officer retires from the Service or dies during the period during which a direction given under subparagraph 63B (1) (c) (ii), paragraph 63B (1) (d), subparagraph 63B (2) (c) (ii) or paragraph 63B (2) (d) is in force in relation to the officer and the officer was not paid salary under this Act during the whole, or a part, of that period, the Commissioner, in his or her discretion, may authorise payment to the unattached officer, or to the estate of the deceased unattached officer, of an amount equal to the amount of salary that would otherwise have been paid under this Act to the unattached officer in respect of the whole, or a part, of that period less the total of the amounts (if any) of the earnings that the Commissioner is satisfied the unattached officer received or was entitled to receive in respect of any employment or work engaged in by the unattached officer during that period.
If a direction given under paragraph 63B (1) (c) or (d) or (2) (c) or (d) is in force in relation to an unattached officer, in connection with any misconduct or offence, immediately before:
(a) a direction in respect of the unattached officer in relation to that misconduct or offence takes effect under section 63N; or
(b) a Disciplinary Appeal Committee sets aside a direction given under subsection 63K (3A) or 63L (3A) in relation to the misconduct or under subsection 63M (1) in relation to the offence;
the direction under paragraph 63B (1) (c) or (d) or (2) (c) or (d) must be taken to have been revoked upon the direction referred to in paragraph (a) taking effect or the setting aside of the direction referred to in paragraph (b).
The revocation of a direction under paragraph 63B (1) (c) or (d) or (2) (c) or (d), in circumstances other than circumstances where the direction is required to be revoked, does not prevent the unattached officer from being given a further direction under any of those paragraphs, as if the previous direction had not been given.”.
1. Notified in the
Commonwealth of Australia Gazette on 6 December 1995.2. Statutory Rules 1935 No. 18 as amended by 1935 Nos. 44, 72, 78 and 119; 1936 Nos. 5, 55, 76, 88, 106, 116, 143 and 154; 1937 Nos. 11, 25, 54, 60, 74, 78, 87, 100, 103 and 118; 1938 Nos. 35, 41, 79, 105, 110 and 113; 1939 Nos. 4, 36, 52, 62, 65, 105, 154, 167 and 168; 1940 Nos. 23, 74, 110, 143 and 247; 1941 Nos. 36, 42, 127, 148, 158, 168, 191, 224, 284 and 310; 1942 Nos. 45, 167, 174, 182, 225, 320, 465, 466 and 552; 1943 Nos. 271, 272 and 301; 1944 Nos. 6, 132, 138 and 143; 1945 Nos. 15, 35, 115, 118 and 124; 1946 Nos. 22, 68, 120, 124 and 153; 1947 Nos. 1, 2, 122, 123, 134, 146, 147, 158 and 163; 1948 Nos. 32, 49, 68, 71, 97, 149, 157 and 158; 1949 Nos. 1, 81, 84 and 98; 1950 Nos. 73, 88, 99 and 100; 1951 Nos. 13, 33, 77 and 110; 1952 Nos. 9, 19, 51 and 94; 1953 Nos. 2, 20, 47, 51, 70 and 93; 1954 Nos. 12, 57, 94, 103 and 126; 1955 Nos. 43, 48 and 67; 1956 Nos. 48, 49, 50 and 133; 1957 Nos. 22 and 58; 1958 Nos. 37 and 57; 1959 Nos. 11, 16, 42, 68 and 99; 1960 Nos. 12, 18, 33, 73, 89 and 93; 1961 Nos. 35, 68 (as amended by 1962 No. 39; 1964 No. 53 and 1966 No. 43), 69, 83, 87, 99, 114, 116, 125, 136 (as amended by 1962 No. 91) and 147; 1962 Nos. 1, 21, 33, 39, 84 and 91; 1963 Nos. 4, 5, 20, 22, 33, 41, 42, 55, 59, 65, 81, 82, 106, 108, 151, 152 and 153; 1964 Nos. 18, 40, 45, 46, 49, 53, 72, 88, 96, 109, 110, 118, 120, 131, 140, 147, 150, 151 and 161; 1965 Nos. 4, 12, 19, 23, 30, 44, 48, 71, 75, 76, 149, 172 and 176; 1966 Nos. 1, 16, 17, 43, 71, 90, 91, 112, 120, 121, 123, 126, 130, 136, 160, 165, 166 and 183; 1967 Nos. 1, 2, 7, 16, 37, 57, 61, 69, 99, 141, 164 and 169; 1968 Nos. 6, 11, 12, 22, 47, 55, 66, 73, 107, 114, 115, 130, 133, 134, 136, 138, 147, 148, 156, 165 and 166; 1969 Nos. 12, 13, 16, 17, 25, 42, 56, 61, 62, 83, 86, 87, 88, 95, 115, 120, 121, 122, 123, 134, 141, 142, 146, 147, 160, 163, 166, 168, 175, 193, 202 and 215; 1970 Nos. 7, 13, 14, 19, 29, 42, 57, 58, 81, 85, 86, 93, 110, 111, 125, 128, 129, 137, 141, 147, 148, 149, 163, 164, 181, 183, 198, 199, 206 and 210; 1971 Nos. 3, 4, 12, 13, 17, 19, 20, 25, 33, 34, 42, 47, 48, 49, 52, 68, 69, 82, 83, 84, 86, 87, 88, 90, 91, 111, 124, 133, 146, 147, 150, 159, 161 and 175; 1972 Nos. 14, 26, 53, 132 and 163; 1973 Nos. 32, 34, 37, 46, 47, 73, 87, 113, 166, 176, 184 and 265; 1973 No. 280 (as amended by 1974 No. 73); 1974 Nos. 5, 15, 16, 51, 73, 98, 99, 119, 135, 143, 149, 168, 169, 204, 223, 242 and 261; 1975 Nos. 17, 18, 33, 54, 72, 132, 150, 174, 184, 194, 212, 217 and 220; 1976 Nos. 17, 18, 71, 95, 96, 116, 152, 153, 154, 155, 167, 178, 180, 182, 229, 231, 248, 300, 302 and 304; 1977 Nos. 9, 12, 15, 57, 62, 74, 75, 94, 119, 194, 195, 212, 222, 245, 257 and 259; 1978 Nos. 7, 8, 9, 33, 84, 109, 154, 205, 285 and 286; 1979 Nos. 9, 10, 68, 78, 142, 179, 219, 259, 261, 262, 263 and 264; 1980 Nos. 18, 26, 52, 89, 97, 103, 145, 226, 227, 231, 272, 344, 364, 402 and 403; 1981 Nos. 9, 34, 35, 44, 51, 79, 109, 306, 307, 350 and 357; 1982 Nos. 30, 40, 41, 54, 61, 75, 87, 257, 290, 336, 390, 392, 293 and 394; 1983 Nos. 4, 5, 9, 30, 35, 36, 55, 57, 91, 98, 109, 110, 112, 119, 138, 219, 295, 267 and 311; 1984 Nos. 14, 54, 80, 107, 112, 140, 141, 142, 211, 234, 247, 253, 272, 400, 436, 468, 469, 470 and 471; 1985 Nos. 7, 29, 34, 65, 108, 177, 208, 298, 334 and 383; 1986 Nos. 7, 124, 130, 131, 132, 133, 134, 135, 155, 187, 256, 314, 340, 341 and 369; 1987 Nos. 25, 38, 90, 137, 157, 180, 270 and 294; 1988
NOTES —continuedNos. 151, 224, 245, 365 and 366; 1989 Nos. 58, 99, 112, 144, 179 and 399; 1990 Nos. 214 and 277; 1991 Nos. 286, 338 and 477; 1992 Nos. 53, 65, 303, 324 and 409; 1993 Nos. 27, 132, 146, 196 and 251; 1994 Nos. 147, 170, 202, 291, 292 and 330; 1995 Nos. 105, 243, 249, 276 and 357.
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