Public Service Amendment Regulations 2003 (No. 1) 2003 No. 317
EXPLANATORY STATEMENT
STATUTORY RULES 2003 No. 317
Issued by the authority of the Prime_ Minister
Public Service Act 1999
Public Service Amendment Regulations 2003 (No. 1)
Subsection 79(1) of the Public Service Act 1999 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 75(1) of the Act, which covers the attachment of salaries to satisfy judgment debts (ie. a debt payable under a judgment or order enforceable by a Court), provides that the regulations may provide for deductions to be made from the salary of a Secretary, the Head of an Executive Agency or an APS employee in order to satisfy a judgment debt, and may prescribe fees payable in connection with such deductions.
The Regulations provide for the procedure to be followed where an Agency Head is in the position of considering whether a deduction should be made in relation to his or her own debt.
The Public Service Amendment Regulations 2002 (No. 1) (the earlier amendments) omitted Regulation 9.1 of the Public Service Regulations 1999 (the Principal Regulations), which related to the attachment of salaries, and inserted a new, more detailed Part 8A.
Section 75 of the Act and Part 8A of the Principal Regulations create the framework for action available where a Secretary, the Head of an Executive Agency or an APS employee incurs a judgment debt. These provisions set out a procedure whereby creditors may recover judgment debts through the Commonwealth, as the employer, deducting part of employees' wages and paying those amounts to creditors in satisfaction of those debts. Subregulation 8A.4(1) of the Principal Regulations provides that where an Agency Head believes that the making of deductions from a debtor's salary is required, the Agency Head must appoint one or more persons as paying officers for the purpose of making those deductions.
However, Part 8A of the Principal Regulations did not provide specifically for the situation where the Agency Head is the debtor. This omission was noted by the Senate Standing Committee on Regulations and Ordinances in its comments relating to the earlier amendments, and these amendments have been made to implement undertakings given to the Committee to meet its concerns.
The Regulations require an Agency Head to delegate the power to appoint a paying officer to an SES employee, should the Agency Head be the judgment debtor. The SES employee would then decide whether deductions are required and, if so, appoint a paying officer for the purpose of making the deductions.
Details of the Regulations are set out in the Attachment.
ATTACHMENT
Regulation 1 names the Regulations as the Public Service Amendment Regulations 2003 (No. 1).
Regulation 2 of the Regulations provides that the Regulations commence on gazettal.
Regulation 3 of the Regulations provides that the Public Service Regulations 1999 are amended as set out in Schedule 1.
Schedule 1 Amendments
The amendments insert a new subregulation 8A.4(1A) after subregulation 8A.4(1) of the Public Service Regulations 1999.
Subregulation 8A.4(lA) provides that where the Agency Head is the debtor:
• The Agency Head must not appoint a paying officer under subregulation 8A.4 (1);
• the Agency Head must, without considering whether the making of a deduction from salary is required, delegate his or her power to appoint a paying officer, in writing, to an SES employee in the Agency; and
• the SES employee must decide whether a deduction from the Agency Head's salary is required and, if so, appoint a person as paying officer.
Subregulaton 8A.4(1A) also provides that the Agency Head must not take any action or make any arrangement in relation to the administration of the debt other than the delegation of the power to appoint a paying officer and assisting the paying officer in the repayment of the debt.
Overview
The Public Service Amendment Regulations 2003 (No. 1) were enacted to address a specific procedural gap within the Public Service Act 1999 concerning the attachment of salaries to satisfy judgment debts. This amendment was necessitated by the earlier Public Service Amendment Regulations 2002 (No. 1), which inadvertently omitted Regulation 9.1 and introduced a more detailed Part 8A. These regulations were issued under the authority of the Prime Minister and aim to clarify and provide a framework for the recovery of judgment debts through salary deductions. Specifically, the 2003 amendments were designed to rectify the oversight identified by the Senate Standing Committee on Regulations and Ordinances, which highlighted the absence of clear procedures when the Agency Head is the debtor. This was achieved by introducing a new subregulation 8A.4(1A) that mandates the Agency Head to delegate their authority to an SES employee, who would then be responsible for deciding on and arranging the salary deductions if necessary. This legislative action ensures transparency and accountability in the management of such financial obligations within the public service framework.
Scope and Application
The Public Service Amendment Regulations 2003 (No. 1) pertain to the Public Service Act 1999, specifically addressing the procedure for the attachment of salaries to satisfy judgment debts incurred by public servants. These regulations apply to Secretaries, Heads of Executive Agencies, and Australian Public Service (APS) employees, focusing on the process of deducting a portion of their wages to repay debts enforceable by a court judgment. The amendments clarify the role of an Agency Head when they themselves are the judgment debtor by requiring them to delegate the responsibility of appointing a paying officer to a Senior Executive Service (SES) employee within the agency. This delegation ensures that the SES employee makes the decision on whether salary deductions should occur and, if necessary, appoints a paying officer to facilitate these deductions. The amendments rectify the omission noted by the Senate Standing Committee on Regulations and Ordinances in its previous comments regarding the absence of specific provisions for an Agency Head who is a debtor. The geographic reach of these regulations is national, applying throughout the Commonwealth of Australia. The regulations do not specify exclusions or thresholds but rather extend the procedural framework for debt recovery through salary deductions as outlined in the Public Service Act 1999 and its regulations.
Key Provisions
The main operative sections of the Public Service Amendment Regulations 2003 (No. 1) pertain to the process of salary deductions to satisfy judgment debts, particularly when the debtor is the Agency Head. Specifically, Regulation 3, along with Schedule 1, amends the Public Service Regulations 1999 to include a new subregulation 8A.4(1A). This new subregulation stipulates that an Agency Head, who is also the judgment debtor, cannot appoint a paying officer themselves. Instead, they must delegate this authority in writing to a Senior Executive Service (SES) employee within their agency. This SES employee is then responsible for determining if salary deductions are necessary and, if so, appointing a paying officer to handle the deductions.
The Regulations impose clear obligations on the parties involved, particularly the Agency Head who is also the debtor. The Agency Head must delegate the power to appoint a paying officer to an SES employee and refrain from any other actions related to the administration of the debt, except for assisting the paying officer in the repayment of the debt. This delegation process ensures that there is an independent assessment of whether salary deductions are warranted and who should handle these deductions.
There are no explicit offences, penalties, or civil/criminal consequences mentioned in the Regulations themselves. However, failure to comply with these provisions could potentially lead to legal challenges or administrative actions under the broader framework of the Public Service Act 1999 and the Public Service Regulations 1999. Non-compliance might result in disputes over the legitimacy of the deductions or the actions taken by the appointed paying officer. The implications of such non-compliance would likely be addressed under the existing legal and administrative processes within the public service framework.