EXPLANATORY STATEMENT
STATUTORY RULES 1987 No. 294
PUBLIC SERVICE REGULATIONS (AMENDMENT)
Issued with the authority of the Public Service Commission
Subsection 97 (1) of the Public Service Act 1922 (‘the Act’) provides, inter alia, that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
Section 33 of the Act concerns the application of the merit principle and the prohibition of patronage and discrimination. So far as is relevant, subsection 33 (4) provides that the reference to discrimination in subsection 33 (3) of the Act shall not be read as including a reference to:
(b) 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 for the purposes of this paragraph.
The term ‘designated group’ is defined in section 7 of the Act to include ‘members of the Aboriginal race of Australia or persons who are descendants of indigenous inhabitants of the Torres Strait Islands’.
The Miller Report on Aboriginal Employment and Training recommended that Aboriginal people should receive training which would result in their receiving permanent employment in the organisation which trains them. The Public Service Commission has developed the Aboriginal Cadetship Program and the Aboriginal Technical Traineeship Program in response to that recommendation.
To ensure that the two programs fulfil their aims, it is necessary to restrict entry to them to Aboriginals. The regulations insert amendments to regulation 71B of the Public Service Regulations to bring the Aboriginal Cadetship Program and the Aboriginal Technical Traineeship Program within the exception in paragraph 33(4)(b) of the Act.
Overview
The Public Service Regulations (Amendment) Statutory Rules 1987 No. 294, issued under the authority of the Public Service Commission, amend the Public Service Regulations 1973 to address the need for targeted employment programs for Aboriginal people in the public service. This amendment was enacted to align with the provisions of the Public Service Act 1922, which allows for regulations that are necessary to carry out the Act, and to support the implementation of approved programs aimed at encouraging the appointment of Aboriginal people, as recommended by the Miller Report on Aboriginal Employment and Training. The policy objective is to ensure that the Aboriginal Cadetship Program and the Aboriginal Technical Traineeship Program, designed to provide training and employment opportunities for Aboriginal people, are effectively implemented by restricting their entry to Aboriginals, thereby fostering greater inclusion of Aboriginal people in the public service in a manner consistent with the merit principle and without constituting unlawful discrimination.
Scope and Application
The Statutory Rules 1987 No. 294, issued under the authority of the Public Service Commission, modify the Public Service Regulations to facilitate the implementation of specific programs aimed at increasing Aboriginal employment within the public service. These regulations amend the Public Service Regulations to align with the requirements of section 33(4)(b) of the Public Service Act 1922, which allows for non-unlawful discrimination in appointments if it is part of an approved program aimed at encouraging the appointment of individuals from designated groups, including Aboriginals and Torres Strait Islanders. This amendment ensures that the Aboriginal Cadetship Program and the Aboriginal Technical Traineeship Program, established in response to the Miller Report's recommendations, can operate effectively by restricting participation to Aboriginal individuals. The regulations apply nationally, given the federal nature of the Public Service Act and the overarching authority of the Public Service Commission, while ensuring compliance with anti-discrimination laws by excluding any practices that would be unlawful under the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984.
Key Provisions
The main operative sections of the Statutory Rules 1987 No. 294 are centred around the amendment of regulation 71B of the Public Service Regulations (paragraphs 3 and 4). These amendments are necessary to ensure that the Aboriginal Cadetship Program and the Aboriginal Technical Traineeship Program, which were developed in response to the Miller Report's recommendations, fall within the exception for approved programs under subsection 33(4)(b) of the Public Service Act 1922. This exception allows for discrimination in appointments to be considered lawful if it is in accordance with a program designed to encourage the employment of members of designated groups, such as Aboriginals, within the public service. These programs are intended to provide training and permanent employment opportunities for Aboriginal people.
The Act imposes specific obligations on the parties and entities it governs. Firstly, it mandates that any program designed to encourage the appointment of designated groups, such as Aboriginal people, must be declared as an approved program by regulation (regulation 71B). Secondly, it requires that such programs must align with the overarching objective of promoting merit and prohibiting patronage and discrimination, except as allowed under the specified exception. Additionally, it necessitates that any discrimination under these programs must not contravene the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984. The Public Service Commission, through these regulations, is tasked with ensuring that these programs are effectively implemented and monitored to achieve their intended goals.
The Statutory Rules 1987 No. 294 do not explicitly state any specific offences, penalties, or civil/criminal consequences for breaches of the regulations. However, any failure to comply with the Public Service Act 1922, including the provisions related to discrimination and merit, could potentially lead to disciplinary actions against public servants, administrative penalties, or legal challenges. The penalties for contravening the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984 can include fines and imprisonment. The maximum penalties for breaches under these Acts are significant, with fines up to $66,000 for individuals and $330,000 for bodies corporate, as well as potential imprisonment terms. Therefore, adherence to the regulations and the underlying Acts is crucial to avoid these severe consequences.