Overview

The Maternity Leave (Commonwealth Employees) Amendment (ASIC) Regulations 2019 were enacted to address the legislative gap created by the transition of the Australian Securities and Investments Commission (ASIC) to direct employment under the Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018, effective 1 July 2019. This transition meant that ASIC employees would no longer be covered by the maternity leave provisions under the Public Service Act 1999 (PSA), which previously ensured their entitlement to maternity leave. The Act, originally enacted in 1973, provides maternity leave for employees of the Commonwealth and other prescribed persons, and the subsequent regulations have been amended to ensure that ASIC employees continue to receive at least the minimum statutory maternity leave entitlements as outlined in the Maternity Leave (Commonwealth Employees) Act 1973 once they transition away from PSA employment. The Regulations were made under the authority of the Assistant Minister to the Prime Minister and Cabinet, Parliamentary Secretary to the Prime Minister, and aim to maintain the existing minimum maternity leave arrangements for ASIC employees without interfering with any more generous provisions already in place.

Scope and Application

The Maternity Leave (Commonwealth Employees) Act 1973 provides maternity leave for employees of the Commonwealth and other prescribed persons, ensuring they receive a minimum level of protection regarding their leave entitlements. The Act applies to individuals and entities that fall under the definition of Commonwealth employees or prescribed persons, ensuring they are eligible for maternity leave as stipulated. The Act’s reach is limited to the Commonwealth sphere, covering federal public sector employees. The Maternity Leave (Commonwealth Employees) Amendment (ASIC) Regulations 2019 further refine the application of the Act to include employees of the Australian Securities and Investments Commission (ASIC), ensuring they receive at least the minimum maternity leave entitlements once ASIC transitions from employing staff under the Public Service Act 1999. These regulations ensure that the current, more generous maternity leave arrangements provided by ASIC are not affected while maintaining the minimum standards set by the Act. The regulations do not extend to other entities outside of ASIC and Commonwealth employees, maintaining the Act's targeted application within the specified scope.

Key Provisions

The main operative sections of the Maternity Leave (Commonwealth Employees) Amendment (ASIC) Regulations 2019 pertain to the regulation-making authority under the Maternity Leave (Commonwealth Employees) Act 1973, the commencement of the amendments, and the authority under which the Regulations are made. Section 1 of the Regulations specifies their name, while Section 2 provides that the amendments that prescribe ASIC in the Maternity Leave (Commonwealth Employees) Regulations 2017 commence on 1 July 2019. Section 3 asserts that the Regulations are made under the Maternity Leave (Commonwealth Employees) Act 1973. Section 4 of the Regulations stipulates that each instrument specified in a Schedule to the Regulations is amended or repealed as set out in the applicable items in the Schedule concerned. These provisions are designed to ensure that the maternity leave arrangements provided for under the Act are maintained for ASIC employees once they are no longer employed under the Public Service Act 1999. The obligations and requirements imposed by the Maternity Leave (Commonwealth Employees) Amendment (ASIC) Regulations 2019 primarily concern the continued coverage of ASIC employees by the maternity leave arrangements under the Maternity Leave (Commonwealth Employees) Act 1973. Once the Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018 commences on 1 July 2019, ASIC will cease to employ staff under the Public Service Act 1999. To ensure that these employees are still covered by the maternity leave arrangements, Schedule 1 of the Regulations amends section 6 of the Maternity Leave (Commonwealth Employees) Regulations 2017 to declare ASIC as a body corporate for the purposes of the definition of prescribed authority in section 3 of the Act. This amendment ensures that ASIC employees will continue to be covered, at a minimum, by the maternity leave arrangements under the Act, even though they will no longer be employed under the Public Service Act 1999. The Maternity Leave (Commonwealth Employees) Amendment (ASIC) Regulations 2019 do not explicitly outline offences, penalties, or civil/criminal consequences for breach. However, the regulations are designed to ensure compliance with the minimum maternity leave arrangements provided for under the Maternity Leave (Commonwealth Employees) Act 1973. Failure to comply with these arrangements could potentially lead to legal action under the Act. ASIC’s current maternity leave arrangements exceed those mandated by the Act, so the amendment does not interfere with these arrangements but ensures the minimum standards are met. The compatibility statement asserts that the Legislative Instrument is compatible with human rights, particularly the human right to maternity leave as recognised in international instruments. This compatibility ensures that ASIC employees are covered, at a minimum, by the maternity leave arrangements under the Act once they cease to be employed under the Public Service Act 1999 on 1 July 2019.