Public Service Regulations (Amendment) 1994 No. 292
EXPLANATORY STATEMENT
STATUTORY RULES 1994 No. 292
Issued by the authority of the Prime Minister
Public Service Act 1922
Public Service Regulations (Amendment)
Paragraph 97(1)(aa) of the Public Service Act 1922 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed.
Part IV of the Act deals with the rights of officers of the Australian Public Service (APS) who become employed by the Commonwealth outside the provisions of the Act in Commonwealth authorities, public offices etc. or by certain non-Commonwealth bodies.
Australian Postal Corporation
For the purposes of Part IV of the Act, the definition of "Commonwealth authority" in subsection 87(1) of the Act includes: "(a) a body, whether incorporated or not, established for a public purpose by a law of the Commonwealth ... other than such a body that is declared by the regulations not to be a Commonwealth authority for the purposes of this Part".
Section 87A of the Act provides in part that where, by virtue of regulations made for the purposes of the definition of "Commonwealth authority", a body ceases to be a Commonwealth authority for the purposes of Part IV, that Part continues to apply to a person to whom it applied immediately before the regulations take effect.
The Australian Postal Corporation (APC), known as Australia Post, is a body which falls within the definition of "Commonwealth authority". Officers of the APS who have been employed by the APC have had the coverage of Part IV.
However, as the APC is a Government business enterprise operating on commercial lines, and its conditions of service have diverged from those of the APS, the Government considers it appropriate for future APS staff who join the APC not to attract Part IV coverage. This is consistent with the approach adopted when the Australian Telecommunications Corporation became part of the Australian and Overseas Telecommunications Corporation.
Section 87A of the Act will give continued Part IV coverage to those APS staff who joined the APC before the Regulations come into operation.
Regulation 3 of the Regulations inserts a new regulation 169A into the Public Service Regulations which provides that for the purposes of the definition of "Commonwealth authority" in subsection 87(1) of the Act, each body corporate specified in Schedule 1G of the Public Service Regulations is declared not to be a Commonwealth authority for the purposes of Part IV of the Act.
Regulation 4 inserts new Schedule 1G, and lists the APC in that Schedule.
The above regulations commence on gazettal.
Aboriginal and Torres Strait Islander Commission
APS officers who become the holders of "public offices", as defined in Part IV of the Act, are covered by that Part.
The definition of "public office" in subsection 87(1) of the Act includes at paragraph (c) an "office or appointment ... included in a class of offices or appointments prescribed ... for the purposes of this paragraph".
Section 87B of the Act provides so far as is relevant that regulations shall not be made for the purposes of the definition of "public office" in subsection 87(1) unless the Public Service Commissioner and the Minister for Finance are satisfied about certain terms and conditions of employment and superannuation arrangements, respectively, that will apply to a relevant public officer.
Regulation 171A of the Public Service Regulations provides that for the purposes of paragraph (c) of the definition of "public office" referred to above, an office or appointment specified in Schedule 3C of those Regulations is prescribed.
Section 127 of the Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act) provides for the election of Chairpersons of Regional Councils by the members of the Councils - the members are elected by Aboriginal persons and Torres Strait Islanders. The Aboriginal and Torres Strait Islander Commission Amendment Act 1993 (the ATSIC Amendment Act) added section 127A to the ATSIC Act, which provides in subsection (1) that a Chairperson holds office on a full-time basis (previously part-time).
Subsection 48(2) of the Acts Interpretation Act 1901 provides that a Regulation has no effect if it would take effect before the date of notification and a person (other than the Commonwealth) would be disadvantaged as a result.
The Government wishes to give Part IV coverage to public servants who become full-time Chairpersons of Regional Councils. The regulations described below bring this about.
Regulation 1 of the Regulations provides that regulation 5 is taken to have commenced on 7 February 1994. This was the date that Chairpersons of Regional Councils were elected by the members of the Councils. Regulation 5 may commence retrospectively as it does not contravene subsection 48(2) of the Acts Interpretation Act.
Regulation 5 of the Regulations adds the office of a Chairperson of a Regional Council to Schedule 3C of the Public Service Regulations. The specification of the office is expressed to be subject to subsection 20(2) of the ATSIC Amendment Act, which provides (inter alia) that section 127A of the ATSIC Act does not apply to the Chairperson of a Regional Council until immediately after the first election of a person as the Chairperson of that Regional Council after the end of the round of Regional Council elections for 1993. This will ensure that Part IV coverage will apply only to full-time Chairpersons.
Officers of the Department of Industrial Relations and the Department of Finance (who have been delegated the powers under section 87B of the Act of the Public Service Commissioner and the Minister for Finance respectively) have declared themselves to be satisfied as required by section 87B.