EXPLANATORY STATEMENT
STATUTORY RULES 1984 NO 80
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 that the Public Service Board may, with the approval of the Governor-General, make regulations prescribing all matters which are required or permitted to be prescribed, for carrying out or giving effect to the Act.
The statutory rule brings the statutory offices of the various State legal aid commissions within the scope of the mobility provisions (Part IV) of the Act.
Part IV of the Act deals with the rights of officers of the Australian Public Service (APS) who become employed either by the Commonwealth outside the provisions of the Act or by certain non-Commonwealth bodies.
Division 3 of Part IV of the Act covers, inter alia, officers who are transferred from the APS to an independently staffed authority as a result of the transfer of functions from the APS to that authority. While such persons to whom Division 3 of Part IV of the Act applies are no longer officers of the APS they retain certain rights that they enjoyed previously as officers.
For purposes of Part IV of the Act, sub-section 87(1) defines “eligible public employment” to include, inter alia, employment as the holder of a public office. “Public office” is defined by sub-section 87(1) to include, inter alia, an office or appointment the holder of which is appointed by the Governor of a State being an office or appointment prescribed by the regulations for the purposes of the definition of “public office”, and any other office or appointment prescribed by the regulations.
Sub-sections 87K(9) and (10) bring officers of the Australian Legal Aid Office (ALAO) who have been transferred to State legal aid commissions within the terms of Division 3. Subsection 87K(9) applies to transfers after the commencing day of Part IV, whilst sub-section 87K(10) applies to transfers before commencing day. Thus former staff of the ALAO who were transferred to the State legal aid commission of Victoria, South Australia, Western Australia or Queensland, are persons
to whom Division 3 applies. It has always been the intention that so long as the former officers worked at the State legal aid commissions, Division 3 should continue to apply to them.
However, it has since been found that if these former officers were to occupy a statutory office within a State commission, they would cease to be employed in eligible public employment because the statutory offices are not prescribed as public offices.
It is necessary to provide for such an eventuality by prescribing the relevant statutory offices in pursuance of sub-section 87(1) as public offices for the purposes of Part IV.
The regulation gives effect to this intention by prescribing the State statutory offices of
• Director and Assistant Director of Legal Aid, Queensland
• Director of Legal Aid, Victoria
• Director of Legal Aid, Western Australia, and
• Director of Legal Services, South Australia as “public offices”.
The regulation applies in relation to each of these offices only while it is held by a person who immediately before appointment to the office was a member of the staff of the ALAO or was a member of the staff of one of the legal aid commissions and immediately before becoming such a member was a member of the staff of the ALAO.