Merit Protection (Australian Government Employees) Regulations (Amendment) 1995 No. 247
EXPLANATORY STATEMENT
STATUTORY RULES 1995 No. 247
Issued by the authority of the Special Minister of State
Merit Protection (Australian Government Employees) Act 1984
Merit Protection (Australian Government Employees) Regulations (Amendment)
Following the amendments made on 8 December 1994 to the Merit Protection (Australian Government Employees) Act 1984 (the Act), the Merit Protection (Australian Government Employees) Regulations (the Regulations) require consequential amendments. In addition, an amendment regarding procedures for Review Committees is proposed.
A. Provision defining "appropriate organisations" (trade unions) for the purpose of ss35A & 57A
2. The Merit Protection (Australian Government Employees) Amendment Act 1994 inserted sections 35A and 57A into the Act. These sections provide for the MPRA to undertake certain functions in response to a request by:
(a) the relevant Department or Commonwealth authority; and
(b) an organisation that is, as provided by the regulations, the "appropriate organisation".
3. Consequently, it is necessary to amend the Regulations to specify the circumstances in which an industrial organisation, ie trade union, is to be the "appropriate organisation" for the purposes of sections 35A and 57A. Proposed regulations 37 and 3 8 would insert a definition based on the union with the largest actual or potential membership in the particular Department given the nature of the majority of positions or specified positions in the Department.
B. Penalties for failure to comply with summons issued by a Disciplinary Appeal Committee or a Redeployment and Retirement Appeal Committee
4. Under regulations 17 and 30, a Convenor of a Disciplinary Appeal Committee or Redeployment and Retirement Appeal Committee may summon a Person to give evidence or produce documents.
5. In the case of a Disciplinary Appeal Committee, paragraph 85(2)(g) of the the Act provides that the regulations may provide a penalty of up to $500 for a failure to comply with a summons. However, regulation 18 currently provides for a penalty of $40. This provision may be contrasted with section 61 of the Administrative Appeals Tribunal Act 1975 which, in the same circumstances, provides for a penalty of $1,000 or imprisonment for 3 months.
6. Until the recent amendment of paragraph 85(2)(g) the Act by the Merit Protection (Australian Government Employees) Amendment Act 1994, there was no provision for a penalty for a failure to comply with a summons by a Redeployment and Retirement Appeal Committees.
7. Proposed regulations 18 and 30A impose a penalty of "5 penalty units" ($500) for the failure to answer a summons without reasonable excuse and set out situations which give rise to a "reasonable excuse". These situations include the failure to provide reasonable expenses for travel, accommodation or production costs. Subregulations 18(3) and 30A(3) provide that a person is not required to answer a question if the answer would tend to incriminate that person.
C. Deadlines for provision of promotion appeal statements to be enforced
10. Recommendation No 4 of the Farrow Report of 1991-Review of MPRA Support Staffing-was that the MPRA should seek approval for legislative amendments to allow deadlines to be set for the provision of statements to Promotion Appeal Committees. The reason given for the recommendation was to enable a Promotion Appeal Committee to determine a case on the papers before it at any time after the deadline given to the parties for the provision of statements supporting the appeal.
11. Subregulation 5A(3) of the Regulations already specifies a deadline for the provision of appeal statements and allows for an extension of time to be granted. However, there is no express provision authorising the Committee to determine the appeal if the deadline is not met.
12. It is proposed that regulation 5A be amended to more clearly provide that if a party is granted an extension of time or a further extension of time to lodge a statement under subregulations (3) and (4), and that deadline is not met, the Committee may determine the matter on the papers before it.
Overview
The Merit Protection (Australian Government Employees) Regulations (Amendment) 1995 No. 247, issued under the authority of the Special Minister of State, was introduced to make consequential amendments to the Merit Protection (Australian Government Employees) Regulations following the revisions made by the Merit Protection (Australian Government Employees) Amendment Act 1994 to the Merit Protection (Australian Government Employees) Act 1984. These amendments were necessary to ensure the Regulations are consistent with the updated provisions of the Act. Additionally, the regulations propose new procedures for Review Committees and modify the penalties for failure to comply with summons issued by Disciplinary Appeal Committees or Redeployment and Retirement Appeal Committees, as well as the enforcement of deadlines for the provision of promotion appeal statements. These changes aim to enhance the efficiency and effectiveness of the merit protection system within the Australian government workforce.
Scope and Application
The Merit Protection (Australian Government Employees) Regulations (Amendment) 1995 No. 247 applies to Australian Government employees and aims to amend the Merit Protection (Australian Government Employees) Regulations to reflect changes made by the Merit Protection (Australian Government Employees) Amendment Act 1994. The primary focus of these amendments is to specify the conditions under which a trade union qualifies as the "appropriate organisation" for certain purposes within the Merit Protection (Australian Government Employees) Act 1984, thereby ensuring clarity and alignment with the new legislative provisions. Additionally, the amendments introduce penalties for non-compliance with summons issued by Disciplinary Appeal Committees or Redeployment and Retirement Appeal Committees, and clarify the enforcement of deadlines for the provision of promotion appeal statements to ensure timely and effective resolution of appeals. These regulations extend to the Commonwealth jurisdiction and apply to all relevant entities and individuals within the scope of the Act. There are no stated exclusions or exemptions within the scope of these amendments, and any further application or restriction is left to be determined through subordinate instruments.
Key Provisions
The Merit Protection (Australian Government Employees) Regulations (Amendment) 1995 No. 247 introduces several significant amendments to the existing Merit Protection (Australian Government Employees) Regulations, consequential to the legislative changes made by the Merit Protection (Australian Government Employees) Amendment Act 1994. One of the primary changes involves defining what constitutes an "appropriate organisation" for the purposes of sections 35A and 57A of the Merit Protection (Australian Government Employees) Act 1984 (the Act). Specifically, regulation 37 and 38 now clarify that an industrial organisation, such as a trade union, qualifies as the "appropriate organisation" if it has the largest actual or potential membership in the particular Department, considering the nature of the majority of positions or specified positions in that Department.
These amendments impose specific obligations on the parties involved. For example, trade unions now have a formalised role in certain functions carried out by the Merit Protection Review Authority (MPRA) as requested by relevant Departments or Commonwealth authorities. This formalisation ensures that the MPRA can effectively engage with the most representative organisations when necessary. Furthermore, the new regulations enhance the authority of Disciplinary Appeal Committees and Redeployment and Retirement Appeal Committees by introducing financial penalties for failure to comply with summonses issued by these committees. Regulation 18 now imposes a penalty of up to $500 for failing to comply with a summons by a Disciplinary Appeal Committee, aligning it more closely with the penalties provided for in the Administrative Appeals Tribunal Act 1975. Additionally, regulation 30A introduces a similar penalty for failure to comply with a summons by a Redeployment and Retirement Appeal Committee, which was previously not covered by the Act.
Failure to adhere to the new requirements and penalties can result in significant consequences. For instance, under the new regulations, if a person fails to answer a summons without reasonable excuse, they may be subject to a penalty of up to $500. Situations that constitute a "reasonable excuse" are specified in subregulations 18(3) and 30A(3) and include the failure to provide reasonable expenses for travel, accommodation, or production costs. Additionally, a person is not required to answer a question if the answer would tend to incriminate them. Another significant change is the enforcement of deadlines for the provision of promotion appeal statements. Regulation 5A(3) now clearly states that if a party fails to meet the deadline for providing a statement, the Promotion Appeal Committee may determine the matter on the papers before it, ensuring timely and efficient case management.