EXPLANATORY STATEMENT
1984 No. 253
PUBLIC SERVICE REGULATIONS (AMENDMENTS)
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 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 being, in part, an office or appointment the holder of which is appointed by the Governor-General or by a Minister.
It is desired that an officer of the Public Service appointed as a member of the Joint Coal Board be covered by Part IV of the Act. Such an appointment is not a Commonwealth office because members of the Joint Coal Board are appointed jointly by the Governor-General and the Governor of the State of New South wales. Nor does it fall under sub-paragraph (b)(i) of the definition of ‘public office’, for a similar reason. It is therefore necessary to cover the appointment by the making of a regulation under paragraph (c) of that definition.
These statutory rules insert regulation 171A into the Public Service Regulations. This regulation prescribes the office of member of the Joint Coal Board for the purposes of paragraph (c) of the definition of ‘public 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, 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. The Board and the officer authorised by the Minister for Finance are satisfied as required in relation to the office of member of the Joint Coal Board.
Overview
The Public Service Regulations (Amendments) 1984 were enacted to address a gap in the existing regulations concerning the eligibility of officers within the Australian Public Service who engage in other public employment while retaining certain leave entitlements and rights to return to the service. The Public Service Act 1922 provides a framework for such engagements, but it was necessary to amend the regulations to include specific roles that were not previously covered. This amendment was authorised by the Public Service Board under the authority granted by the Public Service Act 1922, specifically sub-section 97(1), which empowers the Board to make regulations necessary for carrying out or giving effect to the Act. The policy objective behind this amendment is to ensure that officers appointed to certain public offices, such as those of the Joint Coal Board, are appropriately recognised and their entitlements and rights preserved.
Scope and Application
The Public Service Regulations (Amendments) 1984, issued under the authority of the Public Service Board, extend the scope of the Public Service Act 1922 to include officers appointed as members of the Joint Coal Board within the definition of "public office". This amendment ensures that these officers can engage in eligible employment while retaining certain leave entitlements and rights to return to the Australian Public Service, as outlined in Part IV of the Act. The amendment specifically adds regulation 171A, which prescribes the office of member of the Joint Coal Board for the purposes of the definition of 'public office' under subsection 87(1) of the Act. This legislative change is contingent on the Public Service Board being satisfied with the terms and conditions of employment for these officers, and the Minister for Finance or an authorised officer being satisfied with the superannuation arrangements under the Superannuation Act 1976. This amendment ensures that the officers in question are treated consistently with other public service officers under the Act.
Key Provisions
The main sections of the Public Service Regulations (Amendments) (No. 253) involve the addition of regulation 171A under the Public Service Regulations. This regulation specifically aims to include the office of a member of the Joint Coal Board within the definition of a 'public office' as outlined in sub-section 87(1) of the Public Service Act 1922. This amendment is necessary to ensure that officers of the Australian Public Service who are appointed as members of the Joint Coal Board are covered under Part IV of the Act, thereby allowing them to engage in other public employment while retaining certain leave entitlements and rights to return to the Service.
The obligations imposed by the Act on the parties involved, particularly the Public Service Board, include ensuring that they are satisfied with the terms and conditions of employment for the office of a member of the Joint Coal Board. Additionally, the Minister for Finance or an authorised officer must be satisfied with the arrangements for benefits under the Superannuation Act 1976 for the office-holder. Both the Public Service Board and the authorised officer have confirmed their satisfaction in these respects, thereby complying with the requirements of section 87B of the Act.
In terms of potential breaches and associated penalties, the legislation does not explicitly outline specific offences, penalties, or civil/criminal consequences for failure to comply with the regulations. However, any breach of the Public Service Act 1922 or its regulations could potentially lead to disciplinary action against the offending party, as per the general provisions of the Act. The Public Service Board has the authority to take appropriate action against officers who do not adhere to the stipulated terms and conditions, which could include sanctions such as suspension, demotion, or termination of employment. The exact penalties would depend on the nature and severity of the breach, as well as the specific provisions of the Public Service Act 1922 and related regulations.