EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 208
Issued by the authority of the Minister for Human Services
Human Services Legislation Amendment Act 2005
Human Services Legislation Amendment (Transfer of Staff) Regulations 2005
Background
The Human Services Legislation Amendment Act 2005 (the Act) makes changes to the governance arrangements for Centrelink and the Health Insurance Commission (HIC) to give effect to the government’s response to the Review of the Corporate Governance of Statutory Authorities and Office Holders conducted by
Mr John Uhrig, AC.
Schedule 1 to the Act makes changes to the governance arrangements for Centrelink by making amendments to the Commonwealth Services Delivery Agency Act 1997, by making consequential amendments to other Acts and by providing transitional provisions. Schedule 2 to the Act makes changes to the governance arrangements for HIC by making amendments to the Health Insurance Commission Act 1973 (including to change the name of HIC to Medicare Australia), by making consequential amendments to other Acts and by providing transitional provisions.
The Act:
- abolishes the governance boards of Centrelink and HIC;
- replaces HIC (a separate legal entity to the Commonwealth) with Medicare Australia (a body that will form part of the Commonwealth);
- creates the offices of Chief Executive Officer of Centrelink and of Medicare Australia, with statutory functions. Medicare Australia and Centrelink will each consist of their respective Chief Executive Officers and their staff, but legally will be part of the Commonwealth; and
- establishes new governance arrangements under which the Chief Executive Officers will be directly accountable to the Minister for Human Services.
At the commencement of the Act, HIC’s staff become subject to the Public Service Act 1999, and HIC moves to the Financial Management and Accountability Act 1997 framework as Medicare Australia. The responsibilities of the Chairman of the Centrelink Board under the Financial Management and Accountability Act 1997 framework are transferred to the Chief Executive Officer of Centrelink.
The purpose of the Human Services Legislation Amendment (Transfer of Staff) Regulations 2005 (the Regulations) is to facilitate the smooth transition of staff from HIC to Medicare Australia and the smooth transition to coverage under the Public Service Act.
These and other transitional arrangements must be co-ordinated with the commencement of the Act to ensure a smooth transition to the new governance arrangements.
Authority to Amend Regulations
The Act provides at Item 721 of Part 3 of Schedule 2 that regulations may prescribe matters of a transitional nature in relation to the transfer of staff from HIC to Medicare Australia, even if they are inconsistent with a provision of the Public Service Act.
The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.
Detailed Amendments to Regulations
Regulation 1 – Name of Regulations
This regulation is a formal provision specifying the name of the Regulations as Human Services Legislation Amendment (Transfer of Staff) Regulations 2005.
Regulation 2 – Commencement
This regulation provides for commencement at the same time as Items 31 to 731 of Schedule 2 to the Act. These items commence immediately after, and not at the same time, as the other items of Schedule 2 because of a minor drafting technicality.
The Regulations commence on 1 October 2005, to coincide with the commencement of the Act.
Regulation 3 – Definitions
This regulations provides for definitions that are used in the Regulations as follows:
‘Act’ is defined to mean the Human Services Legislation Amendment Act 2005;
‘HIC Policies and Guidelines’ is defined to mean the policies and guidelines in relation to HIC staffing matters which were in place prior to the commencement of the Act on 1 October 2005;
‘HIC Rules’ is defined to include ‘old law’ which is defined in the Act to mean the Health Insurance Commission Act 1973 as in force prior to the commencement of the Act on 1 October 2005, in addition to the ‘HIC Policies and Guidelines’ and ‘HIC Terms and Conditions of Employment’ defined in this regulation;
‘HIC Terms and Conditions of Employment’ is defined to mean the terms and conditions relating to employment of HIC staff which were in place prior to the commencement of the Act on 1 October 2005;
‘pre-commencement misconduct’ is defined as misconduct committed prior to the commencement of the Act on 1 October 2005, that was misconduct under the HIC Rules;
‘pre-commencement period’ is defined as the 3 months prior to the commencement of the Act on 1 October 2005, ie on and from 1 July 2005;
‘Public Service Act’ is defined to mean the Public Service Act 1999 and relevant regulations and instruments under that Act. It is intended that this should include the Australian Public Service Commissioner’s Directions; and
‘staffing procedures’ is defined by reference to the definition in the Act which includes procedures and policies related to recruitment, promotion, performance management, inefficiency, misconduct, forfeiture of position, fitness for duty, loss of essential qualifications, disciplinary action, reviews of or appeals against staffing decisions, transfers, redundancy, resignations, termination of employment, grievance processes and leave.
Regulation 4 – When disciplinary action commenced
This regulation provides that disciplinary action is taken to have formally commenced when a person has received written notice in relation to suspected misconduct. It is intended that the disciplinary action for suspected misconduct would not be taken to have commenced if there has merely been informal disciplinary action in relation to the misconduct, such as counselling.
Regulation 5 – When decision finally determined
This regulation provides that a decision is finally determined when there are not, or are no longer, any review or appeal rights available under the HIC Rules.
Regulation 6 – Purpose of these Regulations
This regulation provides that the purpose of the Regulations is to prescribe matters regarding transition of staff from HIC to Medicare Australia. It is intended that these Regulations will facilitate the smooth transition of HIC staff to employment under the Public Service Act, by providing for the interim arrangements for certain matters occurring before the commencement date.
Regulation 7 – Recruitment action relating to engagement or promotion commenced but not decided by commencement time
This regulation provides that Medicare Australia may continue engagement or promotion processes (where no decision has been made to engage or promote a person), in relation to former HIC staff who have transferred to Medicare Australia, by applying Public Service Act engagement or promotion processes to the remainder of the engagement or promotion action, so long as the engagement or promotion process commenced prior to the commencement date, and a decision is made in relation to the engagement or promotion within 3 months of the commencement date.
Regulation 8 – Recruitment action relating to engagement or promotion decided but not effective by commencement time
This regulation provides that Medicare Australia may complete engagement or promotion processes, in relation to former HIC staff who have transferred to Medicare Australia, under the processes formerly applied by HIC, in relation to engagement or promotion decisions made but not effective by the commencement date, if a decision in relation to the engagement or promotion is given effect within 3 months of the commencement date.
Regulation 9 – Transfer processes commenced but not decided by commencement time
This regulation provides that Medicare Australia may continue transfer processes (where no decision has been made), in relation to former HIC staff who have transferred to Medicare Australia, by applying Public Service Act transfer processes to the remainder of the transfer process, so long as the transfer process commenced prior to the commencement date, and a decision in relation to the transfer is made within 3 months of the commencement date.
Regulation 10 – Transfer processes decided but not effective by commencement time
This regulation provides that Medicare Australia may complete transfer processes, in relation to former HIC staff who have transferred to Medicare Australia, under the processes formerly applied by HIC, in relation to transfer decisions made but not effective by the commencement date, if the transfer is effected within 3 months of the commencement date.
Regulation 11 – Disciplinary action process – pre-commencement misconduct for which disciplinary action has commenced
This regulation provides that Medicare Australia may complete disciplinary action in relation to pre-commencement misconduct (where no decision has been finally determined), in relation to former HIC staff who have transferred to Medicare Australia, under the processes formerly applied by HIC, if action had formally commenced prior to the commencement date.
Regulation 12 – Disciplinary action process – pre-commencement misconduct for which no disciplinary action has commenced
This regulation provides that Medicare Australia may commence disciplinary action in relation to pre-commencement misconduct where no formal action was commenced prior to the commencement date, in relation to former HIC staff who have transferred to Medicare Australia, under the Public Service Act misconduct processes, so long as the misconduct was a suspected breach of both the Public Service Act (as if it had applied at the time) and the rules formerly applied by HIC.
Regulation 13 – Certain staffing procedures commenced but not finally determined by commencement time
This regulation provides that Medicare Australia may complete specified staffing processes relating to inefficiency, redundancy, fitness for duty, loss of essential qualifications, forfeiture of position or performance management (where no decision has been finally determined), in relation to former HIC staff who have transferred to Medicare Australia, under the processes formerly applied by HIC, if action had formally commenced prior to the commencement date.
Regulation 14 – Termination of employment commenced but not finally determined by commencement time
This regulation provides that Medicare Australia may complete termination of employment processes (where no decision has been finally determined), in relation to former HIC staff who have transferred to Medicare Australia, under the processes formerly applied by HIC in relation to termination procedures, if action had formally commenced prior to the commencement date.
Regulation 15 – Grievance processes commenced but not determined by commencement time
This regulation provides that Medicare Australia may complete grievance processes in relation to actions that occurred pre-commencement (where no decision has been finally determined), under the processes formerly applied by HIC in relation to termination procedures, if action had formally commenced prior to the commencement date.
Regulation 16 – Review of action processes commenced after commencement time
This regulation provides that HIC staff may commence review of action processes under Public Service Act procedures in relation to actions that occurred pre-commencement, where no formal review action was commenced before the commencement date.
Regulation 17 – Review of decisions and determinations
This regulation provides, for the avoidance of doubt, that where the Public Service Act is being applied to processes, the review provisions under the Public Service Act will apply.
Regulation 18 – CEO to perform functions of Managing Director
This regulation provides that the Chief Executive Officer of Medicare Australia can, as required, perform the functions formerly exercised by HIC or the HIC Managing Director.
Regulation 19 – Delegations
This regulation provides that the Chief Executive Officer of Medicare Australia can delegate his or her powers or functions under these Regulations.
Consultation
The amendments to the Regulations were agreed to after consultation with HIC, a number of other policy Departments, and the Australian Public Service Commission.
The Office of Regulation Review was consulted during the preparation of these Regulations.
The Regulations are legislative instruments for the purposes of the Legislative Instruments Act 2003.