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.
Overview
The Public Service Regulations (Amendment) Statutory Rules 1983 were enacted to address a gap in the coverage of leave entitlements and the right to return to the Australian Public Service (APS) for officers who are employed by Special Prosecutors. This amendment was made under the authority of the Public Service Board, pursuant to the Public Service Act 1922, and the Acts Interpretation Act 1901, which provide the Board with the power to make and amend regulations necessary for the effective administration of the Public Service Act. The policy objective of these rules is to ensure that APS officers who are employed by Special Prosecutors, under the Special Prosecutors Act 1982, retain their eligibility for certain leave entitlements and the right to return to the APS as outlined in Part IV of the Public Service Act.
The amendment specifically targets Regulation 172 of the Public Service Regulations, which lists appointments that qualify as eligible public employment under the Public Service Act. By including full-time appointments on the staff of a Special Prosecutor within this regulation, the rules ensure that these officers are appropriately recognised under the provisions of Part IV of the Public Service Act. This is necessary because Special Prosecutors, while appointed by the Governor-General, do not themselves constitute Commonwealth authorities and thus were previously not explicitly covered under the definition of eligible public employment.
Scope and Application
The Public Service Regulations (Amendment) Statutory Rules 1983 No. 109, made under the authority of the Public Service Board and with the approval of the Governor-General, amend the Public Service Regulations to extend the scope of eligible public employment under the Public Service Act 1922. Specifically, the amendment ensures that officers of the Australian Public Service who are employed on a full-time basis by a Special Prosecutor, as per the provisions of the Special Prosecutors Act 1982, are recognised as holding employment by a Commonwealth authority for the purposes of retaining certain leave entitlements and rights to return to the Service under Part IV of the Public Service Act. This amendment addresses a gap in the current regulatory framework by explicitly including appointments made by Special Prosecutors within the definition of eligible public employment, given that Special Prosecutors themselves are not classified as Commonwealth authorities established under a law of the Commonwealth. This amendment applies to officers of the Australian Public Service and those employed by Special Prosecutors under the Special Prosecutors Act, with the jurisdictional reach being Commonwealth-wide, as governed by the Public Service Act 1922 and the Special Prosecutors Act 1982. The amendment ensures consistency and clarity in the application of public service entitlements and rights for these officers.
Key Provisions
The statutory rules, as detailed in Statutory Rules 1983 No 109, amend the Public Service Regulations by modifying Schedule 4. This amendment serves to classify a full-time appointment on the staff of a Special Prosecutor as eligible public employment under section 87(2)(m) of the Public Service Act 1922. This change is crucial as it ensures that officers of the Australian Public Service who hold such appointments are covered by Part IV of the Act. This coverage includes maintaining their leave entitlements and the right to return to their positions within the Service, as stipulated by Part IV. The necessity for this amendment arises from the fact that Special Prosecutors, though appointed by the Governor-General under the Special Prosecutors Act 1982, are not considered Commonwealth authorities. They are not established by a Commonwealth law but are appointed individuals, hence the need to specifically prescribe these appointments to fit within the eligibility criteria outlined in the Public Service Act.
The Public Service Regulations (Amendment) requires officers of the Australian Public Service who are employed by Special Prosecutors to adhere to the provisions of Part IV of the Public Service Act. This includes the retention of leave entitlements and the right to return to their positions within the Service. The amendment ensures that these officers are treated in the same manner as those employed by Commonwealth authorities, as defined by section 87 of the Act. This regulatory change aligns the employment conditions of these officers with those of other public service employees, ensuring consistency and fairness within the Service. The amendment is designed to provide clarity and certainty for officers who may be employed by Special Prosecutors, guaranteeing their rights and entitlements remain protected under the Public Service Act.
Under the Public Service Regulations (Amendment), parties or entities governed by the Act must ensure that officers employed by Special Prosecutors are aware of their rights and entitlements under Part IV of the Public Service Act. This includes maintaining their leave entitlements and being eligible to return to their positions within the Australian Public Service. The amendment necessitates that Special Prosecutors, who employ such officers, comply with the regulations by recognising these entitlements. The Public Service Board, in collaboration with the Special Prosecutors, must ensure that the terms of employment for these officers are transparent and in line with the Act’s provisions. This includes providing necessary documentation and ensuring that the officers are informed of their rights and the conditions of their employment.
The statutory rules establish that any breach of the amended regulations by a Special Prosecutor or the officers employed could lead to civil or administrative consequences. While the specific penalties are not detailed in the text, breaches of public service regulations typically result in corrective actions, such as the enforcement of compliance or the imposition of financial penalties. The Public Service Act and the Public Service Regulations provide a framework for addressing non-compliance, ensuring that the rights and entitlements of officers are upheld. The Governor-General, as the appointing authority for Special Prosecutors, may also take action against non-compliant Special Prosecutors, including the potential revocation of their authority to employ officers. The overarching aim is to maintain the integrity and fairness of the public service employment framework.