EXPLANATORY STATEMENT
STATUTORY RULES 1986 NO 124
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 (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.
Part IV of the Act provides a means by which officers of the Australian Public Service may engage in other public employment whilst retaining certain leave entitlements and rights to return to the Service.
Section 87 of the Act sets out various forms of eligible employment for the purposes of Part IV of the Act. In particular it provides that employment as the holder of a ‘public office’ constitutes eligible employment. ‘Public office’ is defined in sub-section 87(1) as:
‘(a) a Commonwealth office;
(b) an office or appointment the holder of which is appointed -
(i) by the Governor of a State or by a Minister of a State; or
(ii) by the Administrator of the Northern Territory or by an Executive Member of the Legislative Assembly for the Northern Territory,
being an office or appointment prescribed, or included in a class of offices or appointments prescribed, by the regulations for the purposes of this paragraph; or
(c) any other office or appointment prescribed, or included in a class of other offices or appointments prescribed, by the regulations for the purposes of this paragraph,
but does not include an office or appointment in the public service of a State or of the Northern Territory;’.
‘Commonwealth office’ is defined in sub-section 87(1) as including:
‘(a) an office or appointment the holder of which is appointed by the Governor-General or by a Minister under a law of the Commonwealth (including this Act) or a law of a Territory other than the Northern Territory; or
(b) any other office or appointment the holder of which is appointed by the Governor-General, or by a Minister, being an office or appointment declared by the regulations to be a Commonwealth office....’.
It was desired that an officer of the Public Service appointed as Director-General of the Australian Secret Intelligence Service (ASIS) or otherwise holding an appointment in ASIS be covered by Part IV of the Act.
The statutory rules insert regulation 171B into the Public Service Regulations. This regulation prescribes the appointment of a person in ASIS (other than as Director-General) for the purposes of paragraph (c) of the definition of “public office” in sub-section 87(1) of the Act. The statutory rules also amend Schedule 2 of the Public Service Regulations to prescribe the office of Director-General of ASIS for the purposes of paragraph (b) of the definition of “Commonwealth office” in sub-section 87(1) of the Act.
Section 87B of the Act provides, inter alia, that the Board shall not make a regulation for the purposes of the definition of ‘public office’ unless the Board is satisfied as to the terms and conditions of employment of the holder of the relevant office or appointment and the Minister for Finance or an officer authorised by him is satisfied about the arrangements that have been made for benefits under the Superannuation Act 1976 in relation to the office-holder or appointee. The Board and the officer authorised by the Minister for Finance are satisfied as required in relation to appointments in ASIS.