EXPLANATORY STATEMENT
STATUTORY RULES 1989 NO. 349
Issued by the authority of the Prime Minister
Merit Protection (Australian Government Employees) Act 1984
Merit Protection (Australian Federal Police)
Regulations (Amendment)
The purpose of these amendments to the Merit Protection (Australian Federal Police) Regulations is:
• to take account of the insertion, by section 20 of the Law and Justice Amendment Act 1988, of the merit principle and review of non-appellable promotions by the Merit Protection and Review Agency in relation to members and staff members of the Australian Federal Police.
Notes on individual clauses are set out below:
Regulation 1 refers to the Law and Justice Amendment Act 1988 (assented to on 14 December 1988) and provides that the regulations will commence on the date on which s.20 of the Law and Justice Amendment Act 1988 is proclaimed to commence.
Regulation 2 amends the Schedule to the Principal Regulations. The amendments mirror the current provisions of the Principal Regulations except for the following:
• Section 4 of the Act concerns the object of the Merit Protection and Review Agency (the Agency) in relation to members of the Australian Federal Police. Section 4 is amended to include in the Agency’s objects the review of decisions made concerning members of the Australian Federal Police in relation to the review of non-appellable promotions under section 36B of the Australian Federal Police Act 1979.
• Section 6 of the Act concerns the functions of the Agency in relation to members of the Australian Federal Police. Section 6 is amended to include as a function of the Agency the review of non-appellable promotions under section 36B of the Australian Federal Police Act 1979 in accordance with Division 3 of the Act and the provision of advice to members regarding review rights under Division 6 of the Act.
• Section 38 of the Act defines “decision” for the purposes of the Agency’s power to review decisions under Division 3 of Part II of the Act. Section 38 is amended to include decisions to promote a member of the Australian Federal Police where the promotion is a non-appellable promotion within the meaning of section 36B of the Australian Federal Police Act 1979.
• Section 39(4) of the Act is amended so that a decision reviewed by the Agency only gives rise to the making of a recommendation from the Agency to the Commissioner of the Australian Federal Police. A finding by the Agency does not give rise to a new decision under section 42 of the Act (see below) and is thus not binding on the Commissioner of the Australian Federal Police.
• Paragraph 40(a) and Section 41 of the Act deal with who may apply to the Agency for review and with the procedure at the review. They are amended to refer to members of the Australian Federal Police rather than Commonwealth employees.
• Section 42 of the Act is omitted. The provision currently refers to the power of the Agency to review a decision and then vary or set aside the decision. Section 36B of the Australian Federal Police Act 1979 provides that while the Agency would have power to make recommendations it would not have power to substitute decisions. Section 42 of the Act is therefore not applicable.
• Section 44 of the Act is omitted as it refers to the Agency seeking the views of the Public Service Board in relation to review of a decision. It is not relevant.
• Section 45 of the Act refers to applications by former Commonwealth employees. It is amended to refer to members of the Australian Federal Police.
• Section 57 of the Act deals with the Agency providing advice on appeal rights. It is amended to include a member’s right to seek advice from the Agency concerning the review of non-appellable promotions under section 36B of the Australian Federal Police Act 1979.
| Authority: | Section 85(2) of the Merit Protection (Australian Government Employees) Act 1984 |
Overview
The Merit Protection (Australian Government Employees) Act 1984 was enacted to safeguard the integrity and quality of public administration by ensuring that employment decisions within the Australian Government service are made on the basis of merit. The Act was introduced to address the need for a fair, transparent, and merit-based framework for employment within the public service, and it was designed to provide a robust mechanism for the review and appeal of employment-related decisions. The Act was enacted by the Parliament of Australia and its primary policy objective is to uphold the merit principle in the Australian Public Service, ensuring that appointments and promotions are based on merit rather than favoritism or other non-merit-based considerations.
The Merit Protection (Australian Federal Police) Regulations (Amendment) of 1989 further refine the application of these principles specifically to the Australian Federal Police. These amendments were made to align with the insertion of the merit principle and the review of non-appellable promotions by the Merit Protection and Review Agency as introduced by section 20 of the Law and Justice Amendment Act 1988. The amendments aim to clarify the scope and process of the Agency's review functions concerning the Australian Federal Police, ensuring that the review process for promotions within this force adheres to the merit-based framework established by the overarching Act. The authority for these amendments stems from section 85(2) of the Merit Protection (Australian Government Employees) Act 1984, empowering the creation and amendment of regulations to support the Act's objectives.
Scope and Application
The Merit Protection (Australian Federal Police) Regulations (Amendment) concern the Merit Protection (Australian Government Employees) Act 1984 and apply specifically to the members and staff members of the Australian Federal Police (AFP). The amendments incorporate the insertion of the merit principle and the review of non-appellable promotions by the Merit Protection and Review Agency, as provided for by section 20 of the Law and Justice Amendment Act 1988. These regulations amend the existing Merit Protection (Australian Federal Police) Regulations to reflect the new legislative framework which now includes the review of certain promotions within the AFP by the Agency. The amendments ensure that the Agency's functions and review powers are clearly defined in relation to the non-appellable promotions under section 36B of the Australian Federal Police Act 1979. These regulations apply on a national level within Australia, governing the internal merit protection and review processes of the AFP. The amendments do not apply to other Commonwealth employees outside the AFP, and the review powers of the Agency are limited to making recommendations rather than substituting decisions, as per section 36B of the Australian Federal Police Act 1979. The regulations are a direct response to the legislative changes introduced by the Law and Justice Amendment Act 1988 and provide a structured approach to ensuring merit-based practices in the AFP.
Key Provisions
The Merit Protection (Australian Government Employees) Act 1984, as amended by the Merit Protection (Australian Federal Police) Regulations, introduces several key provisions that are important for Australian Federal Police (AFP) members and staff. Section 4 of the Act (4) now includes the review of non-appellable promotions as an object of the Merit Protection and Review Agency (the Agency). This means the Agency is responsible for reviewing decisions concerning AFP members, including those related to promotions that cannot be appealed. Section 6 (6) of the Act expands the Agency's functions to include the review of these non-appellable promotions, in line with Division 3 of the Act, and providing advice to AFP members on their review rights under Division 6.
The obligations imposed on the Agency under these regulations include conducting reviews of non-appellable promotions as per Section 36B of the Australian Federal Police Act 1979 (36B). The Agency must ensure that these reviews are carried out in accordance with the specified procedures, which include providing advice to AFP members on their rights to seek review. The Agency's role also encompasses advising members on the review process and their options, as stipulated in Section 57 (57) of the Act. Furthermore, the Agency is tasked with making recommendations to the Commissioner of the Australian Federal Police, although these recommendations are not binding on the Commissioner (39(4)).
In terms of consequences for non-compliance, the regulations do not explicitly outline specific offences or penalties for breaches. However, the statutory framework implies that any failure to comply with the review processes and obligations set out in the Act could lead to legal challenges or disputes. The Agency's findings and recommendations, while not binding, are integral to the review process and are meant to ensure that decisions concerning AFP members are made in line with merit-based principles. Non-compliance with these regulatory requirements might result in procedural irregularities or potential disputes, which could be addressed through administrative or judicial review processes.