Public Service Regulations (Amendment) 1991 No. 477
EXPLANATORY STATEMENT
STATUTORY RULES 1991 No. 477
Public Service Act 1922
Public Service Regulations (Amendment)
Issued by the authority of the Minister for Industrial Relations for and on behalf of the Prime Minister
Paragraph 97(1)(aa) of the Public Service Act 1922 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed.
Section 49 of the Act provides for the manner in which officers of the Senior Executive Service (SES) may be transferred permanently between offices in the Senior Executive Service.
The Prime Minister and Cabinet Legislation Amendment Act 1991 (the Amendment Act) amends various provisions of the Act to cater for the recently established SES (Specialist) classifications within the SES. These amendments include provision of the mechanism for the transfer of officers of the newly created SES (Specialist) classifications to SES offices which are not SES (Specialist) classifications and vice versa or from SES (Specialist) to other SES (Specialist) classifications.
The Amendment Act amended section 49 so that the power of the relevant Secretary and the Public Service Commissioner to transfer an SES officer is now found in subsections 49(1A) and 49(1B) rather than in subsection 49(1) as it was prior to the amendment. The Amendment Act gives to the Commissioner, rather than to the Secretary to the Department, the power to transfer an officer within the Department from an SES (Specialist) office to an SES office which is not an SES (Specialist) office and vice versa.
Subsection 49(4) of the Act provides that an officer who is transferred under section 49 shall be given notice in writing of the transfer.
Section 49D of the Act provides that the transfer of an SES officer takes effect on the "prescribed day"; or where the officer has applied to decline the transfer under section 52 of the Act and the Public Service Commissioner or the relevant Secretary notifies the officer after the "prescribed day" that permission is refused - on the day when the officer is so notified.
Section 33AAA of the Act defines "prescribed day" in relation to a transfer of an officer under section 49 as the later of a day ascertained in accordance with the regulations and the day on which the office becomes vacant.
Section 52 of the Act provides that an officer may apply to decline an intra-departmental transfer. Subsection 52(2) provides that the application is to be made within the "prescribed period".
Regulation 106 previosly provided for several different matters required by the Act or necessary for giving effect to the Act in the context of SES transfers.
Regulation 1 is a commencement clause providing that these Regulations are taken to have commenced on the commencement of the Amendment Act. It is necessary to provide for retrospective effect in order to provide for the taking effect of transfers under the new provisions in subsection 49(1A) and 49(1B) from the commencement of the Amendment Act.
Regulation 2 provides that the Regulations are amended as follows:
Regulations 106 to 106C replace former regulation 106 by setting out in a clearer manner the provisions of former regulation 106 and at the same time providing the consequential amendments to the content of former regulation 106 to cater for the newly created SES (Specialist) classifications and for the amendment to the Act which changed the provision containing the transfer power from subsection 49(1) to subsections 49(1A) and 49(1B).
New regulation 106 provides that a notice of transfer given under section 49 must state the day on which the transfer is proposed to take effect. This provision has no precedent in the former regulation 106 but it is implicit in the taking effect provisions of former subregulations 106(1) and (2) that the notice contains a proposed day of effect. It is considered appropriate in the interests of clarity to provide explicitly for the day of effect to be included in the notice.
New regulation 106A provides for the period within which an application to decline a transfer may be made by an SES officer under section 52. This was formerly provided in subregulation 106(4). The provision has been reworded in the interests of clarity but no substantive change has been made to the content.
New regulation 106B provides for the "prescribed day" which enables the day on which a transfer under section 49 of the Act takes effect to be determined. This was formerly provided in subregulations 106(1) and (2). The provision has been reworded in the interests of clarity and provision is made for the "prescribed day" in relation to transfers involving the SES (Specialist) classification.
New regulation 106C provides that a transfer of an SES officer under subsections 49(1A) and (1B) of the Act to fill a vacancy notified in the Gazette must be notified in the Gazette. This was formerly provided in subregulation 106(3). The reference to subsection 49(1) in former regulation 106 has been amended to reflect the new structure of section 49.
The Regulations have retrospective effect to the date of Royal Assent of the Amendment Act which is the day on which the Amendment Act commenced. The rights of persons other than the Commonwealth will not be adversely affected.