EXPLANATORY STATEMENT
STATUTORY RULES 1987 No 330
MERIT PROTECTION (AUSTRALIAN GOVERNMENT EMPLOYEES) REGULATIONS (AMENDMENT)
Issued with the authority of the Merit Protection and Review Agency
Subsection 85 (1) of the Merit Protection (Australian Government Employees) Act 1984 (‘the Merit Protection Act’) provides, inter alia, that the Governor-General may make regulations prescribing all matters which are required or permitted to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
A number of the provisions of the Public Service Legislation (Streamlining) Act 1986 (‘the Streamlining Act’) amending the Merit Protection Act came into operation on 20 July 1987. The changes to the Merit Protection Act made by those provisions were largely consequential upon the repeal of the Commonwealth Employees (Redeployment and Retirement) Act 1979 (‘the CE(RR) Act’), and its replacement by a new Division 8C of the Public Service Act 1922, providing a greatly simplified framework for the redeployment and retirement of staff.
The statutory rules replace Part V of the Merit Protection (Australian Government Employees) Regulations (‘the merit protection regulations’), dealing with Redeployment and Retirement Appeal Committees. The new Part V reflects the replacement of the CE(RR) Act by Division 8C of the Public Service Act and the lapsing of the regulations made under the CE(RR) Act, and implements the changes to the Merit Protection Act made by the Streamlining Act. The opportunity has been taken to rationalise the content of Part V of the Merit Protection Regulations by removing unnecessary detail and by the inclusion of provisions which have application to both Senior Executive Service and non Senior Executive Service staff. The provisions also cater to relevant staff of a number of statutory authorities who are employed under the Public Service Act.
Regulation 1 amends the interpretation provision of the Merit Protection Regulations by omitting definitions of the CE(RR) Act and certain regulations made under that Act, and including a definition of the term “employee”.
Regulation 2 is a drafting amendment which supplies a deficiency noted in regulation 11 of the Merit Protection Regulations.
Regulation 3 repeals Part V of the Merit Protection Regulations and substitutes a new Part.
New regulation 25 is an interpretation provision. The term ‘appropriate authority’ is used to denote the authority which issued the redeployment or retirement notice the subject of appeal: the relevant Secretary, the Public Service Commissioner, or the relevant statutory authority.
New regulation 26 provides the mechanism for determining the appropriate organisation for the purposes of the nomination of a member of a Redeployment and Retirement Appeal Committee in accordance with paragraph 23 (1) (c) of the Merit Protection Act.
Under subregulation (1) the appropriate organisation is the organisation, registered under the Conciliation and Arbitration Act 1904, under whose rules a person whose work is comparable to that of the appellant is eligible for membership.
Where there is more than one such organisation, subregulation (2) provides that the organisation which has the greatest number of members whose work is comparable to that of the appellant is the appropriate organisation.
Subregulation (4) provides that where there has been no nomination by the appropriate organisation the Merit Protection and Review Agency (‘the Agency’), in consultation with the Australian Council of Trade Unions, is to nominate a person.
New regulation 27 provides for the submission of statements in relation to appeals. Under subregulations (1) and (2), an appellant and an appropriate authority may submit to the Agency, within a period of 28 days (or such further period as the Agency allows) after the end of the appeal period (in the case of the appellant), or after notification of the making of an appeal (in the Case of an appropriate authority), a statement setting out information, or further information, in relation to the appeal.
Subregulation (3) requires a party submitting such a statement to provide a copy of that statement to the other party.
New regulation 28 relates to the non-disclosure of medical or psychiatric information contained in a statement submitted to the Agency under regulation 27.
Subregulation (1) provides that where the Commonwealth Medical Officer has advised the appropriate authority that disclosure to the appellant of such information might be prejudicial to the health or well-being of the appellant, the authority may instead provide that information to a medical practitioner nominated by the appellant.
Where this course is taken, subregulations (2) and (3) require the authority to advise the appellant and the Agency of the nature of the information excluded from the copy of the statement provided to the appellant.
Subregulation (4) enables the Redeployment and Retirement Appeal Committee constituted for the purpose of the appeal to release to the appellant any information withheld from the appellant under the regulation.
New regulation 29 provides for the appointment of a person to take evidence on behalf of an Appeal Committee where it is impracticable for the Committee to take the evidence itself. The new provision corresponds to former regulation 41 of the Merit Protection Regulations.
New regulation 30 enables the Convenor of a Redeployment and Retirement Appeal Committee to summon a person to give evidence and produce documents to the Committee, or to a person appointed under regulation 29. The new provision corresponds to former regulation 42 of the Merit Protection Regulations.
New regulation 31 provides for hearings of a Redeployment and Retirement Appeal Committee to be public or private. Subregulation (1) establishes that hearings should generally be in public.
Subregulation (2) empowers an Appeal Committee to direct that a proceeding take place in private, prohibit publication of evidence given, and prohibit or restrict disclosure to parties of evidence given.
Subregulation (3) requires the Appeal Committee to have regard to the principle that its proceedings be held in public.
New regulation 32 provides for the representation of parties to an appeal. The new provision corresponds to former regulation 45 of the Merit Protection Regulations.
New regulation 33 provides for the consolidation of appeals and the rights of parties where appeals are consolidated. The new provision is a consolidation of former regulations 43, 44 and 47 of the Merit Protection Regulations.
New regulation 34 provides for the protection from civil or criminal proceedings in certain circumstances of members of a Redeployment and Retirement Appeal Committee, witnesses and representatives of parties. The new provision corresponds to former regulation 46 of the Merit Protection Regulations.
New regulation 35 makes provision in relation to the impartiality of the Appeal Committee. The new provision corresponds to former regulation 48 of the Merit Protection Regulations.
New regulation 36 makes provision in relation to the decision of the Appeal Committee, requiring the Committee to notify all parties of its decision and of the reasons for the decision. The new provision corresponds to former regulation 49 of the Merit Protection Regulations.