EXPLANATORY STATEMENT
STATUTORY RULES 1987 NO 137
Public Service Regulations (Amendment)
Issued with the Authority of the Public Service Board.
Subsection 97(1) of the Public Service Act 1922 (‘the Act’) 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 the carrying out or giving effect to the Act, including for making provision about the duties and conduct of officers
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 repeal those regulations.
The statutory rules repealed Regulations 32 and 34 of the Public Service Regulations (the Regulations) and replaced them with a new Regulation 8A. The statutory rules also provided for the insertion of a new Regulation 8B.
The statutory rules were made following the Board’s consideration of a report of a sub-committee of the Joint Council of the Australian Public Service, a union-management consultative body, and recommendations R198 and R199 of the Royal Commission on Australian Government Administration (RCAGA).
The previous Regulation 32 detailed the obligations and duties of officers. The duties, as previously stated, were commented on by the Joint Council sub-committee as being “antiquated and not an adequate expression of the duties of public servants”. New Regulation 8A updates the expression of the duties of public servants, taking into account the relevant elements of RCAGA recommendation R199, so as to provide a modern and clearly expressed statement of principles about the duties and conduct of officers.
The previous Regulation 34 restricted officers from making public comment except in the discharge of their official duties. The Joint Council sub-committee recommended that Regulation 34 be amended so as to change emphasis from restriction on public comment to the imposition of a duty on officers not to misuse official information gained in the course of employment. Sub-regulation (h) of Regulation 8A replaced Regulation 34 and thus integrated the
sub-committee’s recommendation into the updated statutory summary of the duties of officers.
Regulation 8B provides a new head of power for the declaration or avoidance of interests (pecuniary or otherwise) which may be in conflict with the duties of officers. There was no existing head of power in either the Act or the Regulations dealing with the issue of conflict of interests. The new regulation reflects RCAGA recommendation R198/ which recommended that “a system for registering pecuniary interests of public servants be developed”.
The opportunity was taken to insert the regulations into a more logical position within the framework of the Public Service Regulations.
Overview
The Public Service Regulations (Amendment) Statutory Rules 2004 (C2004L01675) were enacted to address outdated and inadequate provisions within the Public Service Regulations concerning the duties and conduct of officers, as well as to introduce a mechanism for managing conflicts of interest. These statutory rules were issued under the authority of the Public Service Board, following their consideration of a report by a sub-committee of the Joint Council of the Australian Public Service and recommendations from the Royal Commission on Australian Government Administration. The primary policy objective was to modernise the expression of duties for public servants and to establish a clear framework for the declaration and avoidance of potential conflicts of interest. By updating Regulation 32 and introducing Regulation 8A, the rules aim to provide a contemporary and comprehensive statement of the duties and conduct expected from public servants, ensuring they align with current administrative standards and practices.
Scope and Application
The Public Service Regulations (Amendment) Statutory Rules 1987 No. 137 applies to officers within the Australian Public Service, encompassing both individual public servants and the overarching public service entities they constitute. The scope of this amendment extends to updating the duties and conduct of officers as well as addressing conflicts of interest. It operates within the jurisdiction of the Commonwealth, reflecting a central directive in alignment with the Public Service Act 1922 and the Acts Interpretation Act 1901. The amendment specifically repeals and replaces Regulation 32 and 34 of the Public Service Regulations with new Regulation 8A and 8B, respectively, thereby modernising the duties and conduct principles for officers and introducing a new framework for conflict of interest management. The exclusions or exemptions are not explicitly stated in the provided text, but the amendment's focus on updating duties and conflict of interest provisions suggests a comprehensive approach to enhancing accountability and ethical standards within the public service sector. The Public Service Board’s authority to make these regulations, subject to the Governor-General’s approval, allows for further extensions or restrictions through subordinate instruments, ensuring flexibility and adaptability in the application of these regulations.
Key Provisions
The Public Service Regulations (Amendment) Statutory Rules 2004 (C2004L01675) primarily serve to update and modernise the duties and conduct of public service officers as outlined in the Public Service Act 1922 (the Act). These amendments, effective from the date of issue, are introduced to align with the recommendations of the Royal Commission on Australian Government Administration (RCAGA) and to address concerns raised by the Joint Council of the Australian Public Service. Specifically, Regulation 8A replaces the previous Regulation 32, updating the duties of public servants to a more contemporary and comprehensive set of principles. Regulation 8B, a newly introduced provision, addresses conflicts of interest by providing a framework for the declaration or avoidance of any pecuniary or other interests that may conflict with the duties of officers.
These regulations impose several obligations on public service officers. Firstly, Regulation 8A sets out a modernised and clearly articulated set of duties for officers, emphasising their responsibilities towards integrity, impartiality, and accountability. Officers are now required to uphold the principles of public administration, ensuring that their actions and decisions are guided by the public interest. Secondly, the duty on officers to avoid misuse of official information is reinforced, reflecting the shift in focus from merely restricting public comments to actively preventing the misuse of information obtained in the course of employment. Thirdly, Regulation 8B introduces a new requirement for officers to declare any interests that could potentially conflict with their duties, thereby ensuring transparency and maintaining public trust.
The regulations also outline the consequences for non-compliance. Although the statutory rules do not explicitly detail specific offences or penalties within their text, breaches of the Public Service Act or the Regulations may result in disciplinary actions, including possible termination of employment, as per the disciplinary provisions within the Act. The severity of the penalty would depend on the nature and extent of the breach, and could potentially lead to further legal ramifications if the breach involves unlawful conduct or misconduct. The overarching intent is to ensure that public servants adhere to the highest standards of conduct and integrity in the performance of their duties.