EXPLANATORY STATEMENT
Issued by authority of the Minister for the Public Service
Public Service Amendment (Terms and Conditions of Employment) (National Commission for Aboriginal and Torres Strait Islander Children and Young People) Determination 2026
The National Commission for Aboriginal and Torres Strait Islander Children and Young People (National Commission) was established by the Governor-General on 13 January 2025 as an Executive Agency pursuant to section 65 of the Public Service Act 1999 (Public Service Act). The Order to establish the National Commission as an Executive Agency can be viewed in the Commonwealth of Australia Gazette. The terms and conditions of employment for APS employees of the National Commission as an Executive Agency are provided by the Public Service (Terms and Conditions of Employment) (National Commission for Aboriginal and Torres Strait Islander Children and Young People) Determination 2024 (Principal Determination).
On 1 July 2026, the National Commission for Aboriginal and Torres Strait Islander Children and Young People Act 2026 (National Commission Act) and the National Commission for Aboriginal and Torres Strait Islander Children and Young People (Transitional Provisions) Act 2026 (Transitional Act) will transform the National Commission into a Statutory Agency with expanded functions and powers.
Section 5 of the Transitional Act provides that a person who is an APS employee in the Executive Agency immediately before the commencement of the Transitional Act continues as an APS employee in the National Commission on and after the commencement day. The legislative note to this section sets out that the Principal Determination is intended to apply to such employees before, on and after the commencement day.
The Public Service Amendment (Terms and Conditions of Employment) (National Commission for Aboriginal and Torres Strait Islander Children and Young People) Determination 2026 (Amendment Determination) updates definitions used in the Principal Determination to put beyond doubt that it continues to apply to APS employees of the National Commission when it transforms from an Executive Agency into a Statutory Agency.
Details of the Amendment Determination are included in the Attachment.
Authority
Subsection 24(3) of the Public Service Act provides that the Minister for the Public Service may, by legislative instrument, determine the terms and conditions of employment applying to Australian Public Service (APS) employees, if the Minister for the Public Service is of the opinion that it is desirable to do so because of exceptional circumstances.
Under subsection 33(3) of the Acts Interpretation Act 1901 (Acts Interpretation Act), where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
In making the Amendment Determination, the Minister is relying on subsection 33(3) of the Acts Interpretation Act, in conjunction with exercising the power in subsection 24(3) of the Public Service Act.
Consistent with subsection 24(3) of the Public Service Act, the Minister for the Public Service is of the opinion this Amendment Determination is desirable because of exceptional circumstances. Those circumstances are that the Amendment Determination will ensure that employees of the National Commission remain employed under the same terms and conditions as they currently are. These terms and conditions are consistent with the entitlements that were bargained for as part of APS-wide bargaining and reflected in the Department of Social Services Enterprise Agreement 2024-2027.
Exemption from disallowance and sunsetting
The Amendment Determination is a legislative instrument for the purposes of the Legislation Act 2003 (Legislation Act).
The note contained under subsection 24(3) of the Public Service Act clarifies that the disallowance and sunsetting provisions of the Legislation Act do not apply to a determination made under this subsection about the terms and conditions of employment applying to APS employees. The source of the exemption for disallowance is item 27(b) of section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 (the Legislation Regulations). Item 54(b) of section 12 of the Legislation Regulations provides the source of exemption from sunsetting. The Explanatory Statement for the Legislation Regulations also provides that instruments made under item 27(b) of section 10 of the Legislation Regulations are all internal management tools for Government and should continue to be exempt from disallowance. Similarly, the Explanatory Statement for the Legislation Regulations provides that instruments made under item 54(b) of section 12 of the Legislation Regulations are all internal management tools for Government, intended to have ongoing effect, and should continue to be exempt from sunsetting.
It is essential that an instrument made under subsection 24(3) of the Public Service Act continues to be exempt from disallowance and sunsetting provisions of the Legislation Act, so that terms and conditions of employment can be established and maintained for affected employees.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights, prepared under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 is not required for the Amendment Determination, as paragraph 15J(2)(f) of the Legislation Act only requires a Statement to be prepared for disallowable legislative instruments.
Consultation
The Department of Social Services, as the department responsible for establishing the National Commission under primary legislation, was consulted on the preparation of this instrument.
As the Amendment Determination preserves the terms and conditions under which National Commission employees are currently employed, these employees were not consulted on the Amendment Determination.
Impact Analysis
No Impact Analysis is required.
Commencement
The Amendment Determination commences on 1 July 2026.
ATTACHMENT
DETAILS OF INSTRUMENT
Public Service Amendment (Terms and Conditions of Employment) (National Commission for Aboriginal and Torres Strait Islander Children and Young People) Determination 2026
Section 1 - Name
Section 1 provides that the title of instrument is the Public Service Amendment (Terms and Conditions of Employment) (National Commission for Aboriginal and Torres Strait Islander Children and Young People) Determination 2026.
Section 2 - Commencement
Section 2 provides that the instrument commences on 1 July 2026. This is the day that the National Commission Act and Transitional Act commence.
Section 3 - Authority
Section 3 provides that the instrument is made under subsection 24(3) of the Public Service Act.
Section 4 - Schedules
Section 4 provides that each instrument specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Amendments
Schedule 1 to the Amendment Determination sets out the amendment to the Principal Determination.
Item 1 replaces the definition of ‘Commissioner’ to mean the ‘National Commissioner’ within the meaning of the National Commission Act. Under section 5 of the National Commission Act, ‘National Commissioner’ means the National Commissioner for Aboriginal and Torres Strait Islander Children and Young People. Section 10 of the National Commission Act continues the office of the National Commissioner for Aboriginal and Torres Strait Islander Children and Young People in existence with the functions and powers conferred by sections 11 and 12 of the Act.
Section 2 of the Transitional Act provides that if a person has been appointed to be Head of the National Commission as an Executive Agency before 1 July 2026, the appointment continues in force (and may be dealt with) after that time as if the person had been appointed to be National Commissioner for Aboriginal and Torres Strait Islander Children and Young People under section 24 of the National Commission Act.
Item 2 replaces the definition of ‘National Commission for Aboriginal and Torres Strait Islander Children and Young People’ to mean the ‘National Commission’ within the meaning of the National Commission Act. Under section 5 of the National Commission Act, ‘National Commission’ means the National Commission for Aboriginal and Torres Strait Islander Children and Young People. Section 33 of the National Commission Act continues the National Commission in existence. Its function is to assist the National Commissioner in performing functions under the Act.
Section 4 of the Transitional Act provides that the Statutory Agency constituted by the National Commissioner and staff of the National Commission is taken to be the continuation, on and after the commencement day, of the National Commission as an Executive Agency, so that its identity is not affected.
Section 5 of the Transitional Act provides that a person who is an APS employee in the Executive Agency immediately before the commencement of the Transitional Act continues as an APS employee in the National Commission on and after the commencement day. The legislative note to this section sets out that the Principal Determination is intended to apply to such employees before, on and after the commencement day.