EXPLANATORY STATEMENT
STATUTORY RULES 1989 No. 179
Public Service Regulations (Amendment)
Issued by the authority of the Minister for Industrial Relations for and on behalf of the Prime Minister
Subsection 97(1) of the Public Service Act 1922 (the Act) provides 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.
Regulation 171A of the Public Service Regulations provides that the office of a member of the Joint Coal Board is prescribed for the purposes of paragraph (c) of the definition of “public office” in subsection 87(1) of the Act. The prescription of this office by Regulation means that the office is brought within Part IV of the Act. Part IV of the Act covers what is known as the Mobility Provisions whereby an officer who takes up employment in a statutory body which is outside the Act has his or her Public Service rights protected.
One consequence of prescription by regulation is that the office holder enjoys what is known as First Tier coverage for the duration of his or her appointment in that “public office”. First Tier coverage means that the officer is unattached from his or her Public Service position but has the right to return to his or her department as an unattached officer at the same substantive level applicable when that person left to take up the public office. An officer on First Tier also has the right to apply for and be promoted within the Public Service without necessarily vacating the public office. In short, while on First Tier in a public office the office holder’s substantive status and promotional rights within the Public Service are protected.
Regulation 171B of the Public Service Regulations prescribes the appointment of a public servant to the Australian Security Intelligence Service (ASIS) as an appointment to a public office on First Tier coverage.
The attached Public Service Regulations (Amendment) prescribe two new public offices. These are:
• Office of Director of the Australian Institute of Sport established under section 30 of the Australian Sports Commission Act 1989.
• Office of Executive Director of the Australian Sports Commission established under section 28 of the Australian
Sports Commission Act 1989.
The attached Public Service Regulations (Amendment) create a new Schedule 3C which specifies the two new public offices and the current listings for membership of the Joint Coal Board and appointment to ASIS. The creation of the new Schedule 3C obviates the need for the duplication of Public Service Regulations 171A (Joint Coal Board) and 171B (ASIS). Consequently, both Regulations 171A and 171B are repealed and replaced with a single Regulation 171A which prescribes the two new public offices in the Australian Sports Commission and lists the existing public offices for the Joint Coal Board and ASIS.
Overview
The Public Service Regulations (Amendment) 2004, enacted in 2004, addresses the need to update and streamline the regulations concerning public office appointments within the Australian Public Service framework. This amendment was introduced to align the Public Service Regulations with the evolving landscape of statutory bodies and public offices that require protection under the Mobility Provisions of the Public Service Act 1922. The policy objective of this amendment is to ensure that officers who transition to specific public offices retain their substantive status and promotional rights within the Public Service, thereby facilitating their return to their original departments upon vacating the public office. Issued by the authority of the Minister for Industrial Relations on behalf of the Prime Minister, the amendment aims to rectify the inefficiencies caused by the duplication of regulations by consolidating and simplifying the regulatory framework.
Scope and Application
The Public Service Regulations (Amendment) 1989, made under the Public Service Act 1922, applies to the regulation of public offices within the Australian public service, particularly those that require specific mobility provisions for their officers. The amendment primarily affects public servants who are appointed to the Office of Director of the Australian Institute of Sport and the Office of Executive Director of the Australian Sports Commission, ensuring that their Public Service rights are protected under the Mobility Provisions. The amendment also updates the regulation concerning the Joint Coal Board and the Australian Security Intelligence Service, consolidating them into a new Schedule 3C, thereby repealing and replacing previous specific regulations with a single regulation. This amendment is geographically applicable across the Commonwealth of Australia, extending the legislative framework to include these newly defined public offices within the broader public service regulations.
Key Provisions
The key provisions of the Public Service Regulations (Amendment) include the addition of two new public offices to the list of prescribed positions under the Public Service Act 1922. These new offices are the Director of the Australian Institute of Sport and the Executive Director of the Australian Sports Commission, both established under the Australian Sports Commission Act 1989. The amendment creates a new Schedule 3C, which replaces the previous listings for membership of the Joint Coal Board and appointment to the Australian Security Intelligence Service (ASIS). This consolidation into a single schedule simplifies the regulatory framework and repeals the previous Regulations 171A and 171B, replacing them with a new Regulation 171A.
The obligations imposed by this amendment on public servants who take up these new positions include protection of their Public Service rights under the Mobility Provisions outlined in Part IV of the Public Service Act 1922. For those in the new offices, this means they are granted First Tier coverage, ensuring that they remain unattached from their Public Service position but retain their substantive level and promotional rights. The amendment thus ensures that these public servants can move between their current roles and the Public Service without loss of status or rights.
In terms of consequences for breach of the provisions outlined in this amendment, the Public Service Regulations (Amendment) does not specify any offences, penalties, or civil/criminal consequences for non-compliance with the Mobility Provisions. However, any failure to adhere to the terms of the Public Service Act 1922 in general could result in legal action, including potential disciplinary measures under the Act. The specific penalties for breaches of the Public Service Act 1922 would be determined based on the nature and severity of the breach, with potential outcomes ranging from fines to dismissal from service, depending on the circumstances.