EXPLANATORY STATEMENT
STATUTORY RULES 1984 NO 140
PUBLIC SERVICE REGULATIONS (AMENDMENT)
Issued with the authority of the Public Service Board
Sub-section 33(3) of the Public Service Act 1922 (the Act) provides inter alia, that powers under the Act in respect of appointments, transfers and promotions shall, subject to sub-section 33(4), be exercised in accordance with procedures that preclude discrimination on the ground of age.
Paragraph 33(4)(a) of the Act provides, inter alia, that the reference in sub-section 33(3) to discrimination in relation to a power in respect of appointment shall be read as not including discrimination that is essential for the effective performance of the duties to which the appointment relates and is declared by the regulations not to be discrimination for the purposes of sub-section 33(3).
Section 97 of 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 carrying out or giving effect to that Act.
Section 4 of the Acts Interpretation Act 1901 permits the making of regulations in anticipation of the commencement of the provisions empowering the making of those regulations.
Sub-section 33(3) of the Acts Interpretation Act 1901, inter alia, provides 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 or vary any such regulations.
The regulations amend the Public Service Regulations (the Regulations) as part of the implementation of the Public Service Reform Act 1984 and the continuing implementation of the Public Service Acts Amendment Act 1982.
Minimum Ages for Appointment
Under new regulation 71, certain minimum age limits for appointment to positions are declared not to be discrimination for the purposes of section 33 of the Act. Of the seven types of positions proposed to be declared, five have age limits prescribed by the Rules of the International Civil Aviation Organisation, to which Australia is subject. The sixth, for Assistant Customs Officer, allows for the duties of the positions, including acting as an agent of the Commonwealth, to be performed by persons of the age of legal responsibility. The seventh position, Apprentice, is being declared to prevent persons below the minimum school leaving age from seeking appointment.
In addition, section 33 of the Act is declared not to affect the operation of State and Territory legislation which prohibits the employment of minors. It is important that the scope of section 33 be defined so that an inconsistency of legislation under section 109 of the Constitution can be avoided.
Seniority
The seniority of officers of the Australian Public Service is a relevant criterion in certain circumstances for promotion, determination of promotion appeals and selection for temporary performance of duties. Regulation 110 of the Regulations includes various provisions for the determination of seniority by reference to the Division of the Service in which an officer performs or has performed duties.
The Divisional structure of the Service has been abolished upon the proclamation of section 15 of the Public Service Acts Amendment Act 1982, but seniority will continue to be a relevant criterion for the matters previously mentioned. To avoid rendering regulation 110 inoperable upon that abolition, regulation 110 is amended to preserve the seniority entitlements of all officers whose current seniority would be affected. The new provisions fix some seniority dates by reference to the Division of the Service in which the officer was performing duties immediately before the coming into operation of section 15 of the Public Service Acts Amendment Act 1982. Other seniority dates will be fixed by determination under the existing sub-regulation 110(8) and on a basis which ensures that no officer will receive different seniority from that to which he is currently entitled.
Conditions of transfer on promotion from Fourth Division to Third Division
Regulation 112 of the Regulation prescribes educational qualifications, possession of which is currently a prerequisite for promotion or transfer to the Third Division of the Service. This regulation is not required following the abolition of Divisional structure and it is appropriate that it be repealed at this time.