EXPLANATORY STATEMENT
STATUTORY RULES 1985 NO. 65
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, inter alia, 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.
Section 47 of the Act provides for the appointment of persons as officers of the Service to be subject to probation. This enables the services of officers on probation to be terminated for reasons relating to misconduct without recourse to the discipline provisions of the Act.
Division 6 of Part III of the Act provides a comprehensive discipline code applicable generally to officers of the Service. Section 63T of the Act permits regulations to be made extending the application of the discipline provisions to temporary employees. Regulations have been made so that the discipline provisions apply to employees employed under section 82 of the Act who have been so employed for 12 months and to employees who are engaged for a period exceeding 12 months. In the latter case the discipline provisions apply from the beginning of their period of employment.
Section 82 of the Act provides for the employment of persons in a temporary capacity and enables the employment of persons in the Service who cannot be appointed because they do not meet the Australian citizenship requirement.
Sub-section 82(6) enables the Chief Officer of a Department to terminate the services of an employee at any time. This power however is subject to sub-section 82(6A) so that where the disciplinary provisions of the Act apply to an employee, the employee’s services may not be terminated for discipline related reasons without recourse to the discipline provisions.
Section 34 of the Act was recently amended to provide that a person is not eligible for appointment to the Service unless, inter alia, he is an Australian citizen. Formerly it was sufficient that a person be a British subject.
At the time of this amendment the Government approved a proposal that a non-citizen who is a permanent resident but has not satisfied the residential requirement for citizenship or a permanent resident who has applied for citizenship but has not yet been granted citizenship, may apply for positions in the Service, and if selected on merit, may be offered fixed term employment under section 82(4) of the Act at the relevant level for the period it is likely to take for citizenship to be conferred.
The statutory rules amend the regulations which extend the disciplinary provisions of Division 6 of Part III of the Act so that those provisions do not apply to persons employed under section 82 of the Act pending their appointment as officers upon their being able to meet the nationality requirement of section 34 of the Act, until they have been so employed for 12 months. This amendment enables Chief Officers to terminate the employment of such persons under sub-section 82(6) of the Act during the first 12 months for the kinds of reasons that in the case of an officer would result in the annulment of his or her probationary appointment, without reference to the disciplinary provisions of the Act.
The intention is to place employees who are to be appointed following the necessary grant of citizenship on a footing as close as possible to that applying to officers.
The statutory rules also effect a drafting change to regulation 116A
Details of the regulations are set out below.
Regulation 1 effects an unrelated minor amendment to regulation 116A to correct incorrect references to ‘sub-regulation (1)’ by substituting references to ‘sub-regulation 116(1)’.
Regulation 2 amended regulation 165 to provide that an employee engaged by a Department to serve for not less than 1 year pending the granting of Australian citizenship will not be subject to the provisions of the disciplinary code for the first 12 months of employment.
Overview
The Public Service Regulations (Amendment) Statutory Rules 1985 No. 65 were enacted to address the gap in disciplinary provisions for employees hired under section 82 of the Public Service Act 1922 pending their appointment as officers once they meet the Australian citizenship requirements. Issued with the authority of the Public Service Board, these regulations amend the existing rules to ensure that certain employees are not subject to the comprehensive discipline code for the first 12 months of their employment, aligning their status with that of officers on probation. This amendment allows Chief Officers to terminate the employment of such individuals for reasons that would otherwise annul a probationary appointment, without needing to follow the disciplinary provisions of the Act. The policy objective is to maintain consistency in the treatment of employees who are awaiting citizenship while ensuring that the disciplinary framework is appropriately applied.
Scope and Application
The Public Service Regulations (Amendment) Statutory Rules 1985 No. 65 applies to individuals employed under section 82 of the Public Service Act 1922, specifically those who are engaged for a period pending the granting of Australian citizenship. These regulations extend to Commonwealth employees and temporary employees who are awaiting the fulfillment of the citizenship requirement for permanent employment within the Public Service. The regulations clarify and amend the application of disciplinary provisions to these temporary employees, ensuring that they are not subject to the disciplinary code during the first 12 months of their employment. However, it is important to note that this does not exempt them from termination of services under sub-section 82(6) for reasons akin to those that would annul a probationary appointment without recourse to the disciplinary provisions. The jurisdictional reach of these regulations is confined to the Commonwealth, applying uniformly across all departments and agencies within the Australian Public Service. The rules also include a minor drafting amendment to correct references within regulation 116A, ensuring consistency and accuracy within the legislative framework.
Key Provisions
The Public Service Regulations (Amendment) Statutory Rules 1985 No. 65, issued under the authority of the Public Service Board, primarily amend the regulations to extend the application of the discipline provisions in the Public Service Act 1922 (the Act) to certain employees. Regulation 2, in particular, modifies regulation 165 to ensure that employees engaged for at least one year pending the granting of Australian citizenship are not subject to the disciplinary code for the first 12 months of their employment. This amendment is designed to align the conditions for temporary employees with those applicable to officers during their probationary period, allowing for the termination of employment without recourse to disciplinary provisions for certain reasons (subsection 82(6A)).
The obligations imposed by these regulations are primarily on Departments and Chief Officers within the public service. They must adhere to the new rules regarding the employment and disciplinary status of temporary employees who are awaiting citizenship. Specifically, Departments must ensure that employees engaged under section 82 of the Act for at least one year pending citizenship are not subject to the disciplinary code for the first 12 months. Chief Officers must also ensure that any termination of employment for these employees during the first 12 months is carried out in accordance with the provisions of subsection 82(6) of the Act, without invoking the disciplinary code.
There are no explicit offences, penalties, or consequences outlined in the statutory rules themselves. However, the Public Service Act 1922 does provide for potential civil and criminal consequences for breaches of its provisions. For instance, wrongful termination of employment or improper application of disciplinary measures could lead to legal action. While the specific penalties are not detailed in the explanatory statement, they would generally depend on the nature and severity of the breach, with potential civil remedies including reinstatement or compensation, and criminal penalties including fines or imprisonment for serious offences. The precise penalties would be determined in accordance with the relevant provisions of the Public Service Act 1922 and other applicable laws.