EXPLANATORY STATEMENT
STATUTORY RULES 1984 NO. 468
PUBLIC SERVICE REGULATIONS (AMENDMENT)
Issued with the Authority of the Public Service Board
Sub-section 33(3) of the Act provides 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 specified grounds. Paragraph 33(4)(b) provides, inter alia, that the reference to discrimination in relation to a power in respect of appointment, transfer or promotion shall be read as not including a reference to discrimination in relation to appointment that is not unlawful under the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984 and is in accordance with a program to encourage the appointment of women or persons in a designated group to the Service, being a program that is declared by the regulations to be an approved program.
The definition of “designated group” in sub-section 7(1) of the Act includes members of the Aboriginal race of Australia or persons who are descendants of indigenous inhabitants of the Torres Strait Islands.
Under the provisions of the Racial Discrimination Act 1975 effect is given to paragraph 4 of Article 1 of the International Convention on the Elimination of all Forms of Racial Discrimination which provides, so far as is relevant, that special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups to ensure such groups equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination. Recruitment programs to encourage the appointment of Aboriginals to the Service do not therefore constitute unlawful discrimination under the Racial Discrimination Act 1975.
The purpose of the regulation is to declare three recruitment programs to encourage the appointment of persons to the Australian Public Service to be approved programs for the purposes of paragraph 33(4)(b). The programs are:
• the Assistant Research Officer (Aboriginal Services) program;
• the Clerical Assistant (Aboriginal Services) Grade 1 program; and
• the Clerk (Aboriginal Services) Class 1 program.
These are special recruitment programs administered by the Public Service Board to encourage the appointment of members of the Aboriginal race to the Australian Public Service.
Overview
The Public Service Regulations (Amendment) Statutory Rules 1984 No. 468, enacted by the Public Service Board, was introduced to address the need for special measures to facilitate the inclusion of Aboriginal Australians in the Australian Public Service (APS). This amendment was necessary to ensure compliance with international conventions, such as the International Convention on the Elimination of all Forms of Racial Discrimination, which permits special measures to promote equal enjoyment and exercise of human rights for certain racial or ethnic groups. By declaring specific recruitment programs as approved, the regulation aims to support the appointment of Aboriginal Australians within the APS without contravening the Racial Discrimination Act 1975. The policy objective is to promote diversity and inclusion within the APS by encouraging the representation of Aboriginal Australians in accordance with lawful and internationally recognised standards.
Scope and Application
The Public Service Regulations (Amendment) Statutory Rules 1984 No. 468 pertains to the Australian Public Service and aims to facilitate the inclusion of members of the Aboriginal race and persons who are descendants of indigenous inhabitants of the Torres Strait Islands into the service. This amendment is made to ensure that the recruitment processes for these designated groups are considered non-discriminatory under the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984, provided they are part of an approved program. The amendment specifies that the Assistant Research Officer (Aboriginal Services) program, the Clerical Assistant (Aboriginal Services) Grade 1 program, and the Clerk (Aboriginal Services) Class 1 program are declared as approved programs for the purposes of promoting appointments of Aboriginals into the Australian Public Service without constituting unlawful discrimination. This amendment applies to recruitment practices within the Commonwealth and is intended to support equal enjoyment or exercise of human rights and fundamental freedoms for designated groups.
Key Provisions
The main operative sections of these statutory rules (C2004L01628) declare three specific recruitment programs as approved programs under the Public Service Regulations. These programs are designed to facilitate the appointment of members of the Aboriginal race of Australia to the Australian Public Service. Section 3(1) of the rules lists these programs: the Assistant Research Officer (Aboriginal Services) program, the Clerical Assistant (Aboriginal Services) Grade 1 program, and the Clerk (Aboriginal Services) Class 1 program. These programs are intended to operate within the framework provided by sub-section 33(4)(b) of the Public Service Act, ensuring that the appointments are not considered discriminatory as per the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984, provided they align with a program aimed at encouraging the appointment of individuals from designated groups.
These recruitment programs impose certain obligations on the parties involved, primarily the Public Service Board and the Australian Public Service. The Public Service Board is tasked with administering these programs and ensuring they comply with the Act’s stipulations. The Australian Public Service, in turn, must adhere to the procedures set out by these programs when considering appointments, particularly those from Aboriginal communities. This includes following the outlined recruitment processes and ensuring that any appointments made under these programs are in line with the approved programs as declared by the regulations. These obligations are crucial to maintaining the integrity and purpose of the programs, which are to encourage the inclusion of Aboriginal individuals in the public service without contravening anti-discrimination laws.
In terms of potential breaches and their consequences, the legislation does not explicitly outline specific offences, penalties, or civil/criminal consequences for non-compliance with these recruitment programs. However, any failure to adhere to the stipulated procedures or to misuse the programs could potentially lead to broader legal implications under the Public Service Act, the Racial Discrimination Act 1975, or the Sex Discrimination Act 1984. While the exact penalties for such breaches are not detailed in these rules, it is reasonable to infer that non-compliance could result in disciplinary actions, legal disputes, or other corrective measures as prescribed by the relevant Acts. The overarching aim is to ensure that the programs are used to their intended purpose of fostering diversity and inclusion within the Australian Public Service.