EXPLANATORY STATEMENT
STATUTORY RULES 1988 No. 245
Public Service Regulations (Amendment)
Issued with the authority of the Public Service Commissioner
Subsection 97(1) 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.
Part IV of the Act provides a means by which officers of the Australian Public Service may engage in other public employment whilst retaining certain entitlements and rights to return to the Service. Part IV applies to an officer who is the holder of a “Commonwealth office” as defined in subsection 87(1) of the Act. Paragraphs (a) and (b) of that definition provide that “Commonwealth office” means:
“(a) an office or appointment the holder of which is appointed by the Governor-General or by a Minister under a law of the Commonwealth (including this Act) or a law of a Territory other than the Northern Territory; or
(b) any other office or appointment the holder of which is appointed by the Governor-General, or by a Minister, being an office or appointment declared by the regulations to be a Commonwealth office, or included in a class of offices or appointments declared by the regulations to be a class of Commonwealth offices, for the purposes of this Part,”.
Regulation 170 of the Public Service Regulations (the Regulations) declares, for the purposes of paragraph (b) of the definition of “Commonwealth office” in subsection 87(1) of the Act, each office specified in Schedule 2 to the Regulations to be a Commonwealth office for the purposes of Part IV of the Act.
The Minute recommended the making of the Public Service Regulations (Amendment) so that an officer of the Australian Public Service appointed full-time as the Special Adviser to the Minister of State for Industry, Technology and Commerce on the project for the development in Australia of an international scientific, technological and cultural complex, presently known as the Multifunction Polis Project is covered by the mobility provisions of Part IV of the Act. These provisions give protection as to conditions of service and right of return to the Service, and preserve the status of the appointee as an officer of the Service.
The Australian and Japanese Governments, in association with the private sectors in each country, have agreed to undertake a joint study into the feasibility of establishing a new, ‘21st century’ complex in Australia as a focus for international scientific, technological and cultural activities, to be known as the Multifunction Polis. The Special Adviser, appointed by the Governor-General pursuant to section 67 of the Constitution, will oversight the project’s development and coordinate Australia’s involvement in the project generally.
The regulation amends Schedule 2 to the Regulations by inserting, as Item 5, Full-time appointment as the Special Adviser to the Minister of State for Industry, Technology and Commerce on the project for the development in Australia of an international scientific, technological and cultural complex, presently known as the Multifunction Polis Project.
Overview
The Public Service Regulations (Amendment) 1988 was enacted to address the need for specific regulations concerning the appointment of a Special Adviser to oversee the Multifunction Polis Project, a collaborative initiative between Australia and Japan. The regulation was made under the authority of the Public Service Commissioner, in accordance with subsection 97(1) of the Public Service Act 1922, which empowers the Governor-General to make regulations necessary for the implementation and enforcement of the Act. This amendment was prompted by the establishment of the Multifunction Polis Project, a significant international scientific, technological, and cultural complex, and the subsequent appointment of a Special Adviser by the Governor-General. The regulation ensures that the Special Adviser's appointment is recognised as a Commonwealth office under the Act, thus providing the necessary protections and rights afforded to officers of the Australian Public Service under Part IV of the Act.
Scope and Application
The Public Service Regulations (Amendment) Statutory Rules 1988 No. 245 applies to officers of the Australian Public Service who hold a Commonwealth office as defined in the Public Service Act 1922. Specifically, the amendment pertains to an officer who is appointed full-time as the Special Adviser to the Minister of State for Industry, Technology and Commerce on the Multifunction Polis Project. This regulation ensures that such officers are covered by the mobility provisions of Part IV of the Act, which protect their conditions of service, their right to return to the Service, and their status as officers of the Australian Public Service. The amendment extends the definition of "Commonwealth office" in the Regulations to include this specific role, thereby facilitating the officer's eligibility for these protections. The jurisdictional reach of these regulations is within the Commonwealth, as they are amendments to the Public Service Regulations made under the authority of the Public Service Act 1922. The regulation does not explicitly state any exclusions or thresholds but is limited to the specific role of the Special Adviser on the Multifunction Polis Project.
Key Provisions
The Public Service Regulations (Amendment) (No. 2) 2004, under the authority of the Public Service Commissioner, modifies the Public Service Regulations to include a new office within the scope of Part IV of the Public Service Act 1922. This amendment is specifically designed to address the needs of an officer appointed as the Special Adviser to the Minister of State for Industry, Technology and Commerce, tasked with overseeing the development of the Multifunction Polis Project. According to section 97(1) of the Public Service Act 1922, the Governor-General may issue regulations to carry out or give effect to the Act, provided they do not conflict with it. Regulation 170 of the Public Service Regulations lists offices that qualify as "Commonwealth office" for the purposes of Part IV, which governs officers engaging in other public employment while retaining certain rights and entitlements.
Under the amended Regulation 170, the office of the Special Adviser to the Minister of State for Industry, Technology and Commerce on the Multifunction Polis Project is now specified as a Commonwealth office in Schedule 2 of the Regulations. This means that the appointee, while serving in this full-time role, remains an officer of the Australian Public Service and is protected under Part IV of the Act. This protection includes preserving the officer's conditions of service and ensuring they have the right to return to the Service upon completion of their assignment. The officer’s status as an Australian Public Service employee is thus maintained, safeguarding their entitlements and professional rights during their tenure on the project.
The obligations imposed on the parties governed by this Act are primarily centered around the maintenance of the officer’s service conditions and rights. The Australian Public Service officer appointed as the Special Adviser must adhere to the terms and conditions outlined in the Public Service Act 1922 and the Public Service Regulations. This includes maintaining their professional status within the Service, ensuring they do not forfeit any entitlements by virtue of their temporary assignment, and that their role is clearly defined and falls within the scope of permissible activities under Part IV of the Act. Additionally, the officer is required to coordinate and oversee the development of the Multifunction Polis Project, ensuring alignment with both Australian and Japanese government objectives.
Failure to comply with the provisions of the Public Service Act 1922 or the Public Service Regulations can lead to significant consequences. While the specific offences and penalties are not detailed in the Explanatory Statement, breaches of public service regulations can typically result in disciplinary actions, including possible dismissal from service. Such actions may also attract civil or criminal penalties as stipulated under relevant Australian laws. The precise nature and severity of these penalties depend on the specific breach and the discretion of the relevant authorities. The overarching goal is to ensure that officers maintain their status and rights while engaged in other public employment, thereby upholding the integrity and functionality of the Australian Public Service.