EXPLANATORY STATEMENT
STATUTORY RULES 1988 No. 365
PUBLIC SERVICE REGULATIONS (AMENDMENT)
Issued by the authority of the Minister of State for Industrial Relations for and on behalf of the Prime Minister
Subsection 97(11 of the Public Service Act 1922 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, 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 50(1) of the Act provides that except in prescribed circumstances, a Secretary shall not fill a vacant office by promotion unless the vacancy has been notified in the Gazette.
Regulation 112 of the Public Service Regulations (the Regulations) prescribes various circumstances for the purposes of subsection 50(1).
The Minute recommended that the filling of certain offices within the Defence Signals Directorate (DSD) in the Department of Defence be prescribed for the purposes of subsection 50(1) so that they may be filled by promotion without complying with the gazettal requirement.
The functions of the DSD place it in a unique position within the ambit of Public Service Act employment. Prior experience within the area is considered to be an essential prerequisite for promotion to the offices the subject of the proposed regulation. In addition, the selection documents themselves are security classified. Details of required language skills and analytical techniques, and in some instances the physical location of vacancies are matters which could only be released to persons who have the required level of security clearance and who have undergone a special briefing process.
Were DSD to comply with the advertising requirements in subsection 50(1) and follow the selection guidelines in relation to the preparation of selection documents for the offices in question, it would need to modify the documents to make them suitable for public disclosure. This would result in very vague duty statements and selection criteria, giving outside applicants little chance of success. For these reasons it was proposed that certain offices in the range Administrative Service Officer Class 4 to Administrative
Service Officer Class 6 in the Defence Signals Directorate be exempt from the advertising requirements outlined above.
This regulation amends Regulation 112 of the Regulations by inserting paragraph (d) which provides that the decision by the relevant Secretary to fill an office in the DSD the duties of which are those of a Defence Officer and that has the classification of Administrative Service Officer Class 4, Administrative Service Officer Class 5 or Administrative Service Officer Class 6 is a prescribed circumstance.
Overview
The Public Service Regulations (Amendment) 1988, issued under the authority of the Minister of State for Industrial Relations, aims to address a specific issue concerning the filling of certain positions within the Defence Signals Directorate (DSD) in the Department of Defence. The problem arises from the unique nature of DSD's functions which require prior experience as an essential prerequisite for promotion. Given the sensitive nature of DSD’s activities, the advertising of these positions in the Gazette, as required by subsection 50(1) of the Public Service Act 1922, would necessitate modifications to the selection documents. Such modifications would render the duty statements and selection criteria vague, thereby disadvantaging external applicants who lack the requisite security clearance and briefing. To circumvent these issues, the regulation exempts certain offices within the DSD from the advertising requirements, allowing them to be filled by promotion without the need for Gazette notification. This amendment serves to preserve the integrity and effectiveness of the selection process for these critical positions.
Scope and Application
The Public Service Regulations (Amendment) Statutory Rules 1988 No. 365 amends the Public Service Regulations by providing an exemption to certain offices within the Defence Signals Directorate (DSD) in the Department of Defence from the requirement to advertise vacancies in the Gazette before filling them by promotion. This amendment applies to offices classified as Administrative Service Officer Class 4, Administrative Service Officer Class 5, or Administrative Service Officer Class 6. The unique nature of DSD's functions, which require prior experience and specific security clearances, necessitates that these vacancies are filled by promotion without the need for public advertisement. This ensures that the selection documents, which include sensitive details such as required language skills and analytical techniques, remain classified and only accessible to suitably cleared and briefed individuals. The regulation aligns with the broader objectives of the Public Service Act 1922, ensuring that the unique operational needs of the DSD are met while maintaining the integrity and security of its activities.
Key Provisions
The Public Service Regulations (Amendment) (No. 365) 2004, as detailed in the explanatory statement, amends Regulation 112 of the Public Service Regulations 1999. Specifically, it introduces a new paragraph (d) under Regulation 112, which outlines specific circumstances under which a Secretary may fill a vacant office by promotion without the need to notify the vacancy in the Gazette, as stipulated in subsection 50(1) of the Public Service Act 1922. This amendment pertains to certain offices within the Defence Signals Directorate (DSD) in the Department of Defence, specifically those classified as Administrative Service Officer Class 4, Administrative Service Officer Class 5, or Administrative Service Officer Class 6, and whose duties are those of a Defence Officer.
The obligations imposed by this amendment on the relevant Secretary are primarily to ensure that the filling of these specific DSD offices by promotion does not require gazettal, provided the offices meet the criteria outlined in the new Regulation 112(d). This exemption is based on the unique nature of the DSD's functions, which demand prior experience and specific security clearances for the roles. The amendment allows for a more streamlined promotion process within the DSD, facilitating the appointment of suitable candidates without the need to publicise vacancies, which could compromise security and the specificity of the selection criteria.
The consequences of breaching the provisions of this regulation are not explicitly detailed in the explanatory statement. However, given the nature of the Public Service Act 1922 and the regulatory framework it governs, any failure to adhere to the stipulated requirements could result in legal consequences. Such breaches might lead to the invalidity of promotions made under the exemption, potential disciplinary action against the Secretary or other responsible officers, and possibly the need to rectify the promotion process to comply with the Act's requirements. While the statement does not specify penalties, breaches of public service regulations can generally lead to administrative penalties, including financial sanctions, or in severe cases, criminal charges under relevant sections of the Public Service Act or other applicable legislation. The exact penalties would depend on the nature and severity of the breach, as well as the discretion of the enforcing authority.