Public Service Regulations 2023

Overview

The Public Service Regulations 2023, made under the Public Service Act 1999, address various administrative and procedural aspects of the Australian Public Service (APS). These regulations aim to provide a structured framework for the review of employment actions, the conduct of inquiries into breaches of the APS Code of Conduct, and the administration of employment conditions following changes to the machinery of government. Enacted by the Australian Parliament, the regulations seek to ensure that APS employment practices are conducted in a manner that is fair, efficient, and aligned with overarching government policies. They establish the mechanisms for reviewing decisions related to engagement and promotion within the APS, ensuring that these processes are merit-based and in compliance with legislative requirements. Furthermore, the regulations outline the conditions under which the Merit Protection Commissioner and the Australian Public Service Commissioner may conduct inquiries and investigations into various matters, including breaches of the Code of Conduct by public servants, statutory office holders, and the Merit Protection Commissioner themselves. These provisions are crucial for maintaining the integrity and effectiveness of the public service by providing clear guidelines for handling employment-related issues, including the attachment of salaries to satisfy judgment debts and the protection of personal information.

Scope and Application

The Public Service Regulations 2023, made under the Public Service Act 1999, detail the administrative and procedural frameworks governing the Australian Public Service (APS), including the roles and responsibilities of various officials within the APS. These regulations apply to APS employees, statutory office holders, and former APS employees who are engaged or employed under an Act and are assisted by or deal with APS employees in their day-to-day working relationship. The regulations also apply to the Australian Public Service Commissioner and the Merit Protection Commissioner. The scope extends to Commonwealth entities and other relevant employers as defined. Specific exclusions include certain high-level officials, judicial officers, and members of various statutory bodies, as well as actions related to policy, strategy, or direction of the APS or an Agency, as well as actions taken under specific other Acts. The regulations provide for the review of actions affecting APS employment, establish procedures for health clearances and medical examinations for APS employees, and set out the terms for the engagement of APS employees, including Senior Executive Service (SES) and non-ongoing employees. The Australian Public Service Commissioner and the Merit Protection Commissioner have specific functions related to inquiries into alleged breaches of the Code of Conduct, public interest disclosures, and the establishment and operation of Independent Selection Advisory Committees (ISAC). The regulations also address the attachment of salaries to satisfy judgment debts, the protection of information, and transitional arrangements following legislative amendments. Subordinate instruments may further extend or restrict the application of these regulations.

Key Provisions

• The Public Service Regulations 2023, made under the Public Service Act 1999, contain several key provisions that govern various aspects of the Australian Public Service (APS) and its employees. Section 7 mandates that APS employees must not disclose information obtained or generated in connection with their employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government or if the information was communicated in confidence. Exceptions to this include disclosures made in the course of their duties, disclosures authorised by an Agency Head, disclosures otherwise authorised by law, or disclosures that are already in the public domain. Section 8 states that statutory office holders are bound by the Code of Conduct to the extent that they are assisted by, or deal with, APS employees in a supervisory capacity or in another capacity related to their day-to-day working relationship, unless there is an inconsistency with a law of the Commonwealth or a State or Territory relating to the office or appointment. Section 9 limits the deduction from salary for an APS employee found to have breached the Code of Conduct to no more than 2% of the employee’s annual salary.
• The regulations impose specific obligations and requirements on various parties. For example, Section 10 allows an Agency Head to direct an APS employee to undergo a medical examination if there are concerns about the employee's health affecting their work performance or if they are to be assigned new duties or travel overseas. Section 12 permits an Agency Head to engage a Senior Executive Service (SES) employee for a specified term not exceeding five years. Similarly, Section 13 outlines circumstances under which non-ongoing non-SES employees may be engaged for a specified term or the duration of a specified task. Section 14 permits an Agency Head to suspend an APS employee from duties if there are reasonable grounds to believe the employee has breached the Code of Conduct and if the suspension is in the public or Agency's interest.
• Regarding penalties and consequences for breaches, the Act and regulations provide for a range of civil and criminal consequences. For example, Section 50A prescribes basic procedural requirements that must be complied with by the Australian Public Service Commissioner's written procedures for inquiring into and determining whether an Agency Head or a former Agency Head has breached the Code of Conduct, and Section 51 details circumstances under which the Australian Public Service Commissioner may decline to conduct, or discontinue, an inquiry. Furthermore, Section 73 provides for a review by the Merit Protection Commissioner if a former APS employee is entitled to review a determination that they breached the Code of Conduct, while Section 76 stipulates the conduct of such reviews. If the Merit Protection Commissioner is not satisfied with a statutory office holder’s response to their recommendation, they may give a report on the matter to the relevant Agency Minister under Section 81. Finally, Section 88 to Section 98 outline the process for attaching salaries to satisfy judgment debts, including the authority to make deductions, administration fees, and the effect of deductions.
• In summary, the Public Service Regulations 2023 establish clear guidelines and requirements for the conduct of APS employees, the handling of health clearances, the engagement of employees on a non-ongoing basis, and the process for reviewing certain employment actions. They also detail the procedures for inquiries into breaches of the Code of Conduct by various public service officials and the process for attaching salaries to satisfy judgment debts. These provisions ensure that the public service operates in a fair, efficient, and transparent manner, upholding the integrity and effectiveness of the APS.

Legal classification tags

Area of Law

Employment & Labour Law

Instrument

Regulation

Concepts

Definitions & Interpretation

Review & Sunset Clauses

Reporting & Disclosure Obligations

Enforcement Powers

Administrative Discretion