EXPLANATORY STATEMENT
STATUTORY RULES 1983 NO 109
PUBLIC SERVICE REGULATIONS (AMENDMENT)
Issued with the authority of the Public Service Board
Sub-section 97(1) of the Public Service Act 1922 provides that the Public Service Board may, with the approval of the Governor-General, make regulations prescribing all matters which are required or permitted to be prescribed or which are necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
Sub-section 33(3) of the Acts Interpretation Act 1901 provides (inter alia) that, where an Act confers a power to make regulations, the power shall, unless the contrary intention appears, be construed as including a power to amend those regulations.
Section 5 of the Special Prosecutors Act 1982 enables the Govenor General to appoint such numbers of persons as he considers necessary to be Special Prosecutors.
Section 17 of the Special Prosecutors Act provides that a Special Prosecutor may, on behalf of the Commonwealth and with the approval of the Attorney-General, employ, under agreements in writing, such persons as he thinks necessary for the purposes of the performance of his functions.
Part IV of the Public Service Act provides a means by which officers of the Australian Public Service may engage in other public employment whilst retaining certain leave entitlements and rights to return to the Service.
Section 87 of the Public Service Act sets out various forms of eligible public employment for the purposes of Part IV of the Public Service Act. In particular it provides that employment by a Commonwealth authority, that is, by a body established for a public purpose by a law of the Commonwealth, constitutes eligible public employment. In addition, paragraph 87(2)(m) provides that a reference to employment by a Commonwealth authority shall be read as including a reference to employment as the holder of an appointment, in the service of the Commonwealth, being an appointment prescribed for the purposes of that paragraph.
Regulation 172 of the Public Service Regulations provides that the appointments specified in Schedule 4 of the Regulations are prescribed for the purposes of paragraph 87(2)(m) of the Public Service Act.
The statutory rules amend Schedule 4 by prescribing a full-time appointment on the staff of a Special Prosecutor under sub-section 17(1) of the Special Prosecutors Act as employment by a Commonwealth authority for the purposes of paragraph 87(2)(m) of the Public Service Act.
The effect of the amendment is to ensure that officers of the Service holding a full-time appointment on the staff of a Special Prosecutor are covered by Part IV of the Public Service Act and retain certain leave entitlements and the right to return to the Service in accordance with the provisions of Part IV of the Act. It was considered necessary to prescribe appointments made by a Special Prosecutor, because Special Prosecutors, whilst appointed by the Governor-General under the Special Prosecutors Act do not constitute Commonwealth authorities for the purposes of the definition of eligible public employment in that they are not bodies established (as distinct from appointed) under a law of the Commonwealth.