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.
Overview
The Public Service Regulations (Amendment) (Statutory Rules 1984 No 80) were enacted in 1984 to address the issue of defining the scope of mobility provisions for officers within the Australian Public Service (APS) when they transition to roles in State legal aid commissions. The regulation was introduced by the Public Service Board with the approval of the Governor-General under sub-section 97(1) of the Public Service Act 1922. The core policy objective of this amendment was to ensure that officers transferred from the Australian Legal Aid Office (ALAO) to State legal aid commissions retain the benefits and rights outlined in Part IV of the Public Service Act, specifically those related to their mobility and continued eligibility for certain public service entitlements. The regulation clarifies that statutory offices within the State legal aid commissions of Queensland, Victoria, Western Australia, and South Australia are to be recognised as "public offices" for the purposes of these provisions, thereby maintaining the continuity of certain rights and benefits for affected officers.
Scope and Application
The Public Service Regulations (Amendment) Statutory Rules 1984 No 80, issued under the authority of the Public Service Board, modifies the scope of the Public Service Act 1922 to include statutory offices within various State legal aid commissions under the mobility provisions (Part IV) of the Act. This amendment ensures that officers who were previously employed by the Australian Public Service and subsequently transferred to State legal aid commissions continue to benefit from certain rights and protections provided by the Act, even when occupying statutory offices such as Director and Assistant Director of Legal Aid in Queensland, Director of Legal Aid in Victoria and Western Australia, and Director of Legal Services in South Australia. The regulation ensures these statutory offices are recognised as "public offices" under the Act, thereby maintaining the eligibility of these officers for the provisions of Part IV, Division 3. The amendment applies to transfers that occurred both before and after the commencement of Part IV, thus providing clarity and continuity in the application of the Act to these specific roles within the State legal aid commissions.
Key Provisions
The statutory rule, made under the Public Service Act 1922, specifies that the statutory offices of various state legal aid commissions are included within the mobility provisions (Part IV) of the Act. This amendment aims to ensure that officers of the Australian Legal Aid Office (ALAO) who are transferred to state legal aid commissions retain certain rights they previously enjoyed as officers of the Australian Public Service (APS). Specifically, sub-sections 87K(9) and 87K(10) of Part IV of the Act now cover these officers, irrespective of whether the transfer occurred before or after the commencement of Part IV (subsections 87(9) and 87(10)). The regulation further prescribes specific state statutory offices—such as the Director and Assistant Director of Legal Aid in Queensland, the Director of Legal Aid in Victoria, Western Australia, and the Director of Legal Services in South Australia—as "public offices" for the purposes of Part IV. These offices are defined as such only if the officeholder was previously a member of the staff of the ALAO or a state legal aid commission, and before that, was a member of the ALAO staff.
The obligations imposed by this Act on the parties involved primarily concern the continued application of certain rights and protections to officers of the ALAO who are transferred to state legal aid commissions. These officers must meet specific criteria to be covered under the mobility provisions of Part IV, including having been previously employed by the ALAO or another state legal aid commission, with prior ALAO employment. The Act mandates that these officers retain their rights as if they were still part of the APS, despite no longer being direct employees of the Commonwealth. Additionally, by prescribing certain state statutory offices as "public offices," the Act ensures that these officers maintain their eligibility for the benefits and protections outlined in Part IV, even when occupying these roles within state legal aid commissions.
Failure to comply with the provisions of this Act can lead to significant consequences for the parties involved. While the statutory rule itself does not explicitly outline specific offences, penalties, or consequences for non-compliance, breaches of the Public Service Act 1922 can result in various civil and criminal penalties. For civil breaches, penalties may include fines, orders for restitution, or other remedies deemed appropriate by a court. Criminal penalties can include imprisonment, particularly if the breach is found to be willful or involves fraudulent activity. The exact penalties would depend on the nature and severity of the breach, as well as the specific provisions of the Public Service Act 1922 and any relevant case law. It is important for parties to adhere to the Act's requirements to avoid these potential repercussions.