EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO 85
ISSUED FOR AND ON BEHALF OF THE PRIME MINISTER BY THE AUTHORITY OF THE MINISTER FOR INDUSTRIAL RELATIONS
MERIT PROTECTION (AUSTRALIAN FEDERAL POLICE) REGULATIONS
The purpose of the Merit Protection (Australian Federal Police) Regulations (‘the MP (AFP) Regulations’) is to enable the functions of the Appeals Board, established under the Australian Federal Police Act 1979 (‘the AFP Act’), and the Australian Federal Police Regulations (‘the AFP Regulations’), to be transferred to the Merit Protection and Review Agency (‘the MPRA’).
The Merit Protection (Australian Government Employees) Act 1984 (‘the MP (AGE) Act’) enables the extension of the MPRA’s jurisdiction to agencies and authorities not staffed under the Public Service Act 1922. Subparagraph 85(2)(k)(i) of the MP (AGE) Act provides that regulations may be made under subsection 85(i) prescribing the application of the provisions of the Act, subject to such modifications (if any) as are prescribed, to and in relation to members of the Australian Federal Police. These Regulations are made under subparagraph 85(2)(k)(i) and form part of the legislation package to effect the transfer of the Appeals Board functions to the MPRA.
The other parts of the legislative package are:
• the AFP Act as amended by section 5, subsection 9(1) and sections 10, 11 and 12 of the Australian Federal Police Amendment Act 1986; and
• the AFP Regulations as amended by the Australian Federal Police Regulations (Amendment).
The object of the MPRA in relation to the AFP is to ensure that decisions made in relation to members of the AFP in relation to promotions appeals and redeployment and retirement appeals are fair and equitable and are made in accordance with sound personnel management practices and with due regard being had to:
• the efficiency of the AFP; and
• the need to ensure good relations between the AFP and its members.
The functions of the MPRA in relation to the AFP are:
(a) to arrange for the establishment of, and to ensure the proper and efficient operation of, Review Committees in accordance with Subdivisions A (Preliminary), B (Promotion Appeal Committees) and D (Redeployment and Retirement Appeal Committees) of Division 2, and
(b) to provide advice to members of the AFP in relation to appeals.
Notes on individual regulations and the Schedule are set out below:
Regulation 1: Citation
This regulation provides for the citation of these Regulations.
Regulation 2: Interpretation
This regulation provides that, unless the contrary intention appears ‘the Act’ means the MP (AGE) Act.
Regulation 3: Application of the Act to members of the AFP
This regulation provides that the MP (AGE) Act and the provisions of the MP (AGE) in the Schedule apply subject to the modifications in the Schedule to and in relation to persons who are members of the AFP within the meaning of the AFP Act.
Schedule - Modification of Act - Members of the Australian Federal Police
Subsection 3(1)
Subsection 3(1) of the MP (AGE) Act is modified by omitting the definitions of ‘Commonwealth authority’, ‘Commonwealth employee’, ‘Department’, ‘industrial award’, ‘officer’, ‘Public Service Board’, ‘relevant Secretary’, ‘Secretary’ and ‘the Service’. These definitions have no relevance to the AFP.
Subsection 3(1)
Subsection 3(1) of the MP (AGE) Act is modified by inserting definitions of ‘Commissioner’, ‘Federal Police Act’, ‘Member of the Australian Federal Police’, and ‘Review Committee’. These definitions all relate to the MPRA’s functions in relation to the AFP.
Subsection 3(2)
Subsection 3(2) of the MP (AGE) Act which relates to Commonwealth employees is deleted.
Section 4
Section 4 of the MP (AGE) Act is modified by omitting the section and substituting a new section 4. The new section 4 sets out the object for which the MPRA is established in relation to the AFPA.
Section 6
This section of the MP (AGE) Act is modified by omitting paragraphs (a) to (f) and substituting new paragraphs (a) and (b) which specify the functions of the MPRA in relation to the AFP.
Section 7
The MP (AGE) Act is modified by omitting section 7 which defines the meaning of ‘Review Committee’. A new definition of ‘Review Committee’ is inserted in subsection 3(1) of the MP (AGE) Act.
Section 9
The MP (AGE) Act is modified by omitting ‘purpose of determining’ and substituting ‘purpose of in section 9.
Paragraphs (a) and (b) of section 9 which relate to the Australian Public Service are omitted and new paragraphs (a) and (b) substituted. Under the modified section 9 of the MP (AGE) Act the MPRA is required, from time to time, to arrange for the establishment, in accordance with section 10, of such Promotion Appeal Committees for the purpose of:
(a) determining appeals made under regulation 26 of the AFP Regulations; and
(b) making recommendations to the Commissioner in respect of those appeals.
Subsection 10(1)
The MP (AGE) Act is modified by omitting paragraphs (b) and (c) of subsection 10(1) and substituting new paragraphs (b) and (c) and inserting a new subsection (1A). The modified subsection 10 (1) provides that a Promotion Appeal Committee shall be constituted by:
(a) a Convenor nominated by the MPRA;
(b) a person nominated by the Commissioner; and
(c) a person nominated by the Australian Federal Police Association.
New subsection 10(1A) prevents an officer or member of a police force of the Commonwealth, or a State or Territory or of a country other than Australia being nominated as Convenor of a Promotion Appeal Committee.
Section 11
The MP (AGE) Act is modified by omitting section 11 and substituting a new section 11 which provides that for the purposes of Subdivision B of Division 2 the parties to an appeal are the parties specified in Division 2 of Part IIA of the AFP Regulations.
Section 15
This section which relates to Commonwealth employees is omitted.
Subdivision C of division 2 of Part II
This Subdivision which deals with Disciplinary Appeal Committees is omitted because it is not being applied to the AFP.
Section 22
The MP (AGE) Act is modified by omitting ‘Divisions 8B and 8C of Part III of the Public Service Act 1922’ from section 22 and substituting ‘section 38F of the Federal Police Act’. Under the modified section 22, the MPRA is required to arrange for the establishment, in accordance with section 23, of Redeployment and Retirement Appeal Committees as required for the purposes of section 38F of the AFP Act.
Section 23
The MP (AGE) Act is modified by omitting paragraphs (1)(b) and (c) and substituting new paragraphs (b) and (c). The modified subsection 23(1) provides that a Redeployment and Retirement Appeal Committee shall be constituted by:
(a) a Convenor nominated by the MPRA;
(b) a person nominated by the Commissioner; and
(c) a person nominated by the Australian Federal Police Association.
Subsection 23(2), which relates to officers of the Australian Public Service, is omitted.
Section 24
The MP (AGE) Act is modified by omitting section 24 and substituting a new section 24 which provides that, for the purposes of Subdivision D, the parties to an appeal are the parties specified in Division 2 of Part IIA of the AFP Regulations.
Section 26A
This section is omitted because the matter is covered by the AFP Regulations.
Subdivisions E and F of Division 2 of Part III.
Subdivision E (Re-appointment Review Committees) and F (Re-Integration Committees) of Part II are omitted because they are not relevant to the AFP.
Section 37
Paragraphs 1(a), (c) and (d) are omitted because these matters are covered by the AFP Regulations.
Subsection 37(2) is omitted and a new subsection 37(2) substituted which provides that, in relation to the Review Committees, ‘relevant Act’ means the AFP Act.
Section 37A
This section is also omitted because it is not relevant to the AFP.
Divisions 3, 4 and 5 of Part II.
Division 3 (Review of Certain Decisions), 4 (Grievances) and 5 (Inquiries) are omitted because they are not being applied to the AFP.
Division 6 of Part II
The MP (AGE) Act is modified by omitting Division 6 of Part II and substituting a new Division 6 dealing with the provision of advice on rights of appeal to members of the AFP.
Division 7 of Part II
Division 7 (Procedure and Powers) of Part II is omitted because it is not relevant to the AFP.
Section 78
Subsection 78(4) which relates to omitted divisions is also omitted.
Section 81
The MP (AGE) Act is modified by omitting section 81 which deals with offences, because it is not being applied to the AFP.
Section 82
Paragraph 82(1)(a) is omitted because it is not being applied to the AFP.
Section 85
Paragraphs 85(2)(b), (d), (e), (f) and (g) are omitted because they relate to matters not being applied to the AFP.
Subparagraphs 85(2)(k)(ii) to (vi) are omitted because they are not relevant to the AFP.
At the end of the Act a new section 86 is added. This transitional provision provides for appeals lodged under regulations 26 or 34A of the AFP Regulations prior to the commencement of s.86 shall be deemed to be an appeal to a Review Committee on the day of that commencement for the purposes of Subdivision B or D of Division 2 of Part II of the MP (AGE) Act as modified by these Regulations.
Under subsection 86(2) an appeal deemed to be made to a Review Committee under subsection 86(1) may be heard and determined by the Review Committee in accordance with the MP (AGE) Act as modified by these Regulations.