EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 224
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 officers employed by a “public authority” which is defined in subsection 87(1) as including:
“(b) a body corporate, other than a Commonwealth authority, in which the Commonwealth or a Commonwealth authority has a direct or indirect pecuniary interest, being a body corporate prescribed by the regulations for the purposes of this paragraph;”
Regulation 171AA of the Public Service Regulations (the Regulations) prescribes bodies specified in Schedule 3A as public authorities for the purposes of paragraph (b) of the definition of ‘public authority’ in subsection 87(1) of the Act.
Australian Committee of Directors and Principals in Advanced Education Limited (ACDP) is a company incorporated in the ACT under the Companies Act 1981 to promote the advanced education sector within Australia and to service the needs of colleges of advanced education. ACDP is a body in which the Commonwealth has an indirect pecuniary interest and it therefore falls directly within paragraph (b) of the definition of ‘public authority’ in subsection 87(1).
The regulation amended Schedule 3A to the Regulations by inserting the company in the Schedule.
The effect of the prescription is that officers of the Australian Public Service employed by ACDP will be covered by the mobility provisions of Part IV the Act, which give protection as to conditions of service and right of return to the Service.
Section 87B of the Act provides, that regulations shall not be made for the purposes of the definition of ‘public authority’ unless the Public Service Commissioner is satisfied as to the terms and conditions of employment that will be applicable to
persons employed by the proposed public authority, and the Minister for Finance or an authorised officer is satisfied about the arrangements that have been made for benefits under the Superannuation Act 1976 in relation to those persons. The Commissioner and the officer authorised by the Minister are satisfied that the terms and conditions of employment and the superannuation arrangements applicable to officers employed by ACDP are adequate.
Overview
The Public Service Regulations (Amendment) Statutory Rules 1988 No. 224 was enacted to address a specific issue within the Australian Public Service concerning the definition and application of "public authorities" as outlined in the Public Service Act 1922. The regulations aim to clarify and expand the definition of public authorities to include certain bodies in which the Commonwealth has a pecuniary interest, thereby extending the protections and entitlements under Part IV of the Act to officers employed by these entities. This amendment was authorised by the Public Service Commissioner and ensures that officers of the Australian Public Service who are employed by the Australian Committee of Directors and Principals in Advanced Education Limited (ACDP) are covered by the mobility provisions, ensuring their rights and conditions of service are protected. The regulations were made under the authority of subsection 97(1) of the Public Service Act 1922 and the satisfaction of the Public Service Commissioner and the authorised officer under the Superannuation Act 1976, aligning with the policy objective of maintaining consistent and fair employment terms across public service roles.
Scope and Application
The Public Service Regulations (Amendment) Statutory Rules 1988 No. 224, made under the authority of the Public Service Commissioner, amend the existing regulations to include Australian Committee of Directors and Principals in Advanced Education Limited (ACDP) as a prescribed public authority. This means that officers of the Australian Public Service employed by ACDP are now covered by the mobility provisions of Part IV of the Public Service Act 1922. These provisions ensure that such officers retain certain entitlements and the right to return to the Australian Public Service. The amendment is subject to the satisfaction of the Public Service Commissioner regarding the terms and conditions of employment for ACDP employees, and the Minister for Finance or an authorised officer regarding the superannuation arrangements under the Superannuation Act 1976. The inclusion of ACDP in the regulations extends the geographic reach to wherever the company operates within Australia, given its status as a body corporate with an indirect pecuniary interest of the Commonwealth.
Key Provisions
The main operative sections of the Public Service Regulations (Amendment) are found in Regulation 171AA and Schedule 3A, which together amend the definition of a "public authority" under subsection 87(1) of the Public Service Act 1922. This amendment includes Australian Committee of Directors and Principals in Advanced Education Limited (ACDP) as a body corporate that falls within the definition of a public authority due to the Commonwealth's indirect pecuniary interest in it. By including ACDP in Schedule 3A, the amendment ensures that officers employed by ACDP are covered by the mobility provisions in Part IV of the Act, thereby protecting their conditions of service and ensuring their right to return to the Australian Public Service.
The obligations and requirements imposed by this Act on the parties it governs primarily relate to the terms and conditions of employment and superannuation arrangements for officers employed by ACDP. According to section 87B of the Act, regulations cannot be made for the definition of a "public authority" unless the Public Service Commissioner is satisfied that the terms and conditions of employment are adequate. Additionally, the Minister for Finance or an authorised officer must be satisfied with the arrangements for benefits under the Superannuation Act 1976. The Commissioner and the authorised officer have confirmed that the terms and conditions of employment and the superannuation arrangements for ACDP are sufficient.
In terms of consequences for breach, the Public Service Regulations (Amendment) does not explicitly outline specific offences, penalties, or civil/criminal consequences for non-compliance. However, non-compliance with the terms and conditions of employment or superannuation arrangements could potentially lead to legal actions or disputes between the officers and ACDP, or between the officers and the Australian Public Service. Any failure to adhere to the prescribed terms and conditions may also result in officers being ineligible for the protections and rights afforded by Part IV of the Public Service Act 1922.