EXPLANATORY STATEMENT
STATUTORY RULES 1986 NO 314
PUBLIC SERVICE REGULATIONS (AMENDMENT)
Issued with the authority of the Public Service Board
Sub-section 97(1) of the Public Service Act 1922 (“the Act”) provides, inter alia, that the Public Service Board (“the 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 the Act.
Regulations 1 and 3
Sub-section 87(1) of the Act reads in part:
“In this Part [i.e. Part IV], unless the contrary intention appears -
…
‘Commonwealth office’ means -
…
(b) any … office or appointment the holder of which is appointed by the Governor-General … being … 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 1 repeals regulation 61P of the Public Service Regulations (“the Regulations”). That regulation provided, when read with sub-section 71(1) of the Act, that leave of absence may be granted enabling an officer or employee of the Australian Public Service (“the APS”) to be appointed to be a representative in another country of the Government of the Commonwealth. The provision is relevant to the appointment of Heads of Mission by the Governor-General in Council. Regulation 61P further provided that no remuneration is payable (under APS legislation) to an officer or employee during appointment as a Head of Mission; and that an officer shall, at the conclusion of the period of leave, be entitled to be appointed by the Board to an office in the APS of such status and salary as are determined by the Board having regard to the office vacated on, and the period of, his/her appointment as a Head of Mission.
Regulation 61P has been repealed because regulation 3 of these statutory rules inserted new regulation 176A into the Regulations. This regulation provides that the office or appointment of a representative in another country of the Commonwealth Government (i.e. a Head of Mission) is declared to be a class of Commonwealth offices for the purposes of Part IV of the Act. The effect of this is that an officer of the APS appointed as a Head of Mission will become an unattached officer of the APS, who enjoys preservation of leave credits and who may, whilst on leave, apply for promotion or transfer to positions throughout the APS. At the conclusion of the posting, such an officer is entitled to return to the APS at the level he/she previously held, or, if he/she was promoted to a higher level during the posting but did not take up the position, that higher level.
The new arrangements have been agreed by the Department of Foreign Affairs.
Regulation 2
So far as is relevant, sub-section 50(3) of the Act permits the Secretary of a Department to fill a vacant office by the transfer of an officer. Sub-section 50(5A) provides that such an officer shall be given notice in writing of the transfer. Section 50EB provides as follows:
“A transfer of an officer under sub-section 50(3) … takes effect -
(a) if the officer does not apply to the Board… for permission to decline the transfer or the officer applies to the Board for such permission but the Board notifies the officer, not later than the prescribed day in relation to the transfer, of its refusal to grant such permission - on the prescribed day in relation to the transfer; or
(b) if the officer applies to the Board … for permission to decline the transfer and the Board notifies the officer, on a day that is later than the prescribed day in relation to the transfer, of its refusal to grant such permission - on the day on which the Board notifies the officer of its refusal to grant such permission.”
Sub-section 33AAA(1) defines “prescribed day” for the purposes of section 50EB as meaning:
“in relation to a transfer of an officer under section… 50… - the later of -
(i) a day ascertained in accordance with the regulations, being a day occurring not earlier than the day on which the officer is given notice of the transfer under sub-section … 50(5A)…; and
(ii) the day on which the office to which the officer is transferred becomes vacant”.
Sub-regulation 109(2) previously provided in part:
“For the purposes of the definition of ‘prescribed day’ in sub-section 33AAA(1) of the Act -
…
(c) in relation to a transfer of an officer under section 50 of the Act that is not required to be notified in the Gazette -
(i) where the officer has stated in writing that he or she has no objection to the transfer - the day so referred to is the day specified in the notice of the transfer given to the officer as the day on which the transfer takes effect;
(ii) in any other case - the day so referred to is the fourteenth day after the day specified in the notice of the transfer given to the officer as the day on which the transfer takes effect or such later day as is specified in that notice.” (emphasis added).
The underlined words have been replaced as they do not clearly express what is intended; and they also failed to deal with the situation where the notice given to an officer does not specify a date on which the transfer will take effect.
Regulation 2 amended sub-paragraph 109(2)(c)(ii) by substituting “on which the officer is notified of the transfer” for the words underlined. This overcomes the difficulties mentioned above.