EXPLANATORY STATEMENT
STATUTORY RULES 1390 NO. 214
Public Service Regulations (Amendment)
Issued by the authority of the Minister for Industrial Relations for and on behalf of the Prime Minister
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 (the Service) may engage in other public employment while retaining certain entitlements and rights to return to the Service. Part IV applies to an officer who is the holder of a “Commonwealth office” which is defined in subsection 87(1) of the Act as including:
“(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;”
Paragraph (n) of that definition states that “Commonwealth office” does not include an office or appointment declared by the regulations not to be a Commonwealth office.
Part IV also applies to an officer who is the holder of a “public office” which is defined in subsection 87(1) of the Act as including:
“(c) any office or appointment prescribed….. by the regulations for the purposes of this paragraph;”
As part of the Government’s reforms in relation to what are collectively known as Government Business Enterprises, the office of Chief Executive Officer for most of those enterprises has been excluded from the jurisdiction of the Remuneration Tribunal with the effect that salary and allowances for chief executive officers are not determined by the Remuneration Tribunal. Consistent with those reforms those offices have been excluded, by the amending Regulation, from coverage under the mobility provisions contained in Part IV of the Act with the effect that a chief executive officer who was formerly an officer of the Service will not have the right of re-entry (if applicable) to the Service. This reform has placed the chief executive officers on a comparable footing to their private sector counterparts.
The offices in Regulation 2 are held by the Chief Executive Officers of a number of Government Business Enterprises. They fall within paragraph (a) of the definition of ‘Commonwealth office’ in subsection 87(1) of the Act and as such would have received coverage under the Part IV mobility provisions of the Act. The offices have been prescribed under Regulation 171 and included in Schedule 3 to remove them from coverage under Part IV of the Act. Regulation 2 also omits Item 3A from Schedule 3. Due to changes in the legislation there is no further need to include the Australian Shipping Commission in Schedule 3.
The Public Service Regulations (Amendment) have prescribed three hew public offices. These are:
Office of General Manager of the Aboriginal and Torres Strait Islander Commercial Development Corporation established under the Aboriginal and Torres Strait Islander Commission Act 1989 (ATSIC Act)
Office of Principal of the Institute of Aboriginal and Torres Strait Islander Studies established under the Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 (AIATSIS Act)
Office of Executive Director of the Energy and Research and Development Corporation established under the Primary Industries and Energy Research and Development Act 1989, when that office is held on a full-time basis.
The effect of such prescription is that an officer of the Australian Public Service appointed to one of the above offices will be covered by the mobility provisions of Part IV of the Act which will 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 Public Service Regulations (Amendment) have made the following amendments to the Principal Regulations:
Regulation 1 provides a commencement date of 2 July 1990.
Regulation 2 has amended Schedule 3 to the Regulations by omitting item 3A and inserting 5 additional offices into Schedule 3. These are:
Office of Managing Director of the Australian Telecommunications Corporation
Office of Managing Director of the Commonwealth Banking Corporation
Office of Deputy Managing Director of the Commonwealth Banking Corporation
Office of Chief Executive Officer of the Civil Aviation Authority
Office of Chief Executive Officer of the Federal Airports Corporation
Regulation 3 has amended Schedule 3C to the Regulations by inserting into Schedule 3C the following offices:
Office of General Manager of the Aboriginal and Torres Strait Islander Commercial Development Corporation
Office of Principal of the Australian Institute of Aboriginal and Torres Strait Islander Studies
Office of Executive Director of the Energy Research and Development Corporation
Overview
The Public Service Regulations (Amendment) 1990 were enacted to align the treatment of chief executive officers in Government Business Enterprises with their private sector counterparts. This reform was introduced to address inconsistencies in the remuneration and mobility provisions for these officers under the Public Service Act 1922. The amendments were made under the authority of the Minister for Industrial Relations and are intended to provide a more consistent framework for the employment and mobility of these officers. By excluding certain offices from the mobility provisions, the amendments ensure that the remuneration of these officers is no longer subject to the Remuneration Tribunal, thereby aligning their conditions of service with those of the private sector. Additionally, the amendments prescribed new public offices to be covered by the mobility provisions, ensuring that officers appointed to these roles retain their public service status and entitlements.
Scope and Application
The Public Service Regulations (Amendment) 1990 amend the Public Service Regulations 1981 to modify the coverage of mobility provisions under Part IV of the Public Service Act 1922. These regulations specifically exclude certain Chief Executive Officer positions within Government Business Enterprises from the mobility provisions, meaning these officers no longer retain the right of re-entry to the Australian Public Service. This amendment aligns the conditions of service for these officers with those of their private sector counterparts. The amendment also introduces new public offices to be covered under the mobility provisions, ensuring officers appointed to these roles maintain their status and rights within the Australian Public Service. These include the Office of General Manager of the Aboriginal and Torres Strait Islander Commercial Development Corporation, the Office of Principal of the Institute of Aboriginal and Torres Strait Islander Studies, and the Office of Executive Director of the Energy Research and Development Corporation when held on a full-time basis. The regulations further adjust Schedule 3 to omit the Australian Shipping Commission and add several other offices, including those of the Australian Telecommunications Corporation and the Commonwealth Banking Corporation, to clarify the scope of the mobility provisions.
Key Provisions
The Public Service Regulations (Amendment) (SR 1990 No. 139) amends the Public Service Regulations to implement significant changes to the coverage of mobility provisions under the Public Service Act 1922 (the Act). Section 97(1) of the Act empowers the Governor-General to make regulations that are necessary for carrying out the Act. Part IV of the Act pertains to officers of the Australian Public Service who engage in other public employment, ensuring they retain certain entitlements and rights to return to the Service. The amendment specifically targets the definition of "Commonwealth office" and "public office" as outlined in subsection 87(1) of the Act.
Under the amendment, the offices of Chief Executive Officers of most Government Business Enterprises are excluded from the jurisdiction of the Remuneration Tribunal, meaning their salaries and allowances are no longer determined by the Tribunal. These offices have also been removed from the coverage of Part IV of the Act, thereby denying any former Service officer the right of re-entry if they were to hold such a position. This change aligns the remuneration and mobility rights of these officers with those of their private sector counterparts.
Additionally, the amendment has prescribed three new public offices that are now covered by the mobility provisions in Part IV of the Act. These offices include the General Manager of the Aboriginal and Torres Strait Islander Commercial Development Corporation, the Principal of the Institute of Aboriginal and Torres Strait Islander Studies, and the Executive Director of the Energy Research and Development Corporation when held on a full-time basis. Officers of the Australian Public Service appointed to these positions will retain their status as officers of the Service and will be entitled to the protections and rights outlined in Part IV.
The amendment also makes several changes to Schedule 3 of the Regulations, including the omission of the Australian Shipping Commission and the addition of five new offices: Managing Director of the Australian Telecommunications Corporation, Managing Director and Deputy Managing Director of the Commonwealth Banking Corporation, and Chief Executive Officers of the Civil Aviation Authority and the Federal Airports Corporation. These changes ensure that officers in these positions are covered by the relevant mobility provisions.
The Public Service Regulations (Amendment) stipulates various obligations for the entities it governs. The primary obligation is to ensure that the new regulations align with the Public Service Act 1922 and do not conflict with any existing provisions. This includes the exclusion of certain Chief Executive Officer positions from the mobility provisions and the inclusion of new public offices under the protection of Part IV. Furthermore, the amendment requires that these changes be implemented from the commencement date of 2 July 1990, as specified in Regulation 1.
There are no specific offences, penalties, or civil/criminal consequences mentioned in the amendment for breach of these regulations. However, non-compliance with the Public Service Act 1922 could potentially lead to legal repercussions, including disciplinary action against officers who fail to adhere to the prescribed mobility provisions. The exact consequences would depend on the specific circumstances and the interpretation of the Act by relevant authorities.