Public Service Regulations (Amendment)

Legislation au C2004L01668 Regulations Not in force Legislative Instrument

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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Regulation 61P has been repealed because regulation 3 of these statutory rules inserted new regulation 176A into the Regulations.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.

Overview

The Public Service Regulations (Amendment) Statutory Rules 1986 No 314 were enacted to address certain ambiguities and practical issues within the Public Service Regulations 1968 concerning the transfer of officers within the Australian Public Service (APS) and the appointment of Heads of Mission. Authorised by the Public Service Board under the Public Service Act 1922, these regulations aim to clarify and streamline the process of officer transfers and the terms under which officers may serve as Heads of Mission. Regulation 1 repeals the previous provision allowing officers to be appointed as Heads of Mission, replacing it with a new regulation that classifies such positions as Commonwealth offices, thereby ensuring officers retain their leave entitlements and eligibility for promotions or transfers within the APS. Regulation 2 rectifies ambiguities in the notice period for officer transfers, ensuring clarity and fairness in the notification process. The amendments were agreed upon by the Department of Foreign Affairs, reflecting a coordinated effort to enhance the efficiency and fairness of APS operations.

Scope and Application

The Public Service Regulations (Amendment) Statutory Rules 1986 No. 314, issued under the authority of the Public Service Board and with the approval of the Governor-General, are made pursuant to sub-section 97(1) of the Public Service Act 1922. These regulations primarily affect officers and employees of the Australian Public Service who may be appointed as representatives of the Commonwealth Government in another country, specifically as Heads of Mission. By declaring such positions as a class of Commonwealth offices under the new regulation 176A, the officers on leave to take up these roles will enjoy preservation of leave credits and the ability to apply for promotions or transfers throughout the APS during their leave period. The amendments also clarify the process and timelines for officer transfers within the APS as per sub-section 50(3) of the Act, ensuring that the prescribed day for the transfer is more accurately determined. The changes were agreed upon by the Department of Foreign Affairs, ensuring alignment with the operational requirements of diplomatic postings.

Key Provisions

The key operative sections of this legislation concern the Public Service Regulations, specifically amending and repealing certain regulations. Regulation 1 repeals regulation 61P of the Public Service Regulations, which previously governed the leave of absence for officers or employees of the Australian Public Service (APS) to be appointed as representatives in another country of the Commonwealth Government, such as Heads of Mission. This repeal is consequential to the introduction of new regulation 176A via Regulation 3, which declares that the office or appointment of a representative in another country of the Commonwealth Government is a class of Commonwealth offices for the purposes of Part IV of the Public Service Act 1922. This change means that an APS officer appointed as a Head of Mission will become an unattached officer of the APS, retaining leave credits and eligibility to apply for promotions or transfers within the APS during their leave period. Upon the conclusion of their posting, the officer is entitled to return to the APS at their previous level or the higher level achieved during the posting if they did not take up the new position. The obligations and requirements imposed by this legislation primarily concern the treatment of APS officers who are appointed to overseas representative roles. Under the amended regulations, these officers will be considered unattached officers of the APS, thereby preserving their leave credits and career progression opportunities. They must be given written notice of any transfer within the APS as per sub-section 50(5A) of the Public Service Act 1922. The Board must also notify the officer of any decision regarding a request to decline the transfer, with the timing of such notifications governed by the amended sub-regulation 109(2)(c)(ii) to ensure clarity and fairness in the transfer process. The legislation outlines specific consequences and penalties for non-compliance with these provisions. While the statutory rules do not explicitly state penalties for breaches of the new regulations, the Public Service Act 1922 generally provides for disciplinary action against officers who fail to comply with regulations or lawful directions. Such disciplinary measures may include warnings, fines, suspension, or termination of employment, depending on the severity of the breach. The precise consequences would be determined based on the specific circumstances of the non-compliance and the internal disciplinary processes of the APS.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.