EXPLANATORY STATEMENT
Statutory Rules 1988 No 319
Remuneration Tribunals (Miscellaneous Provisions) Regulations (Amendment)
(Issued by the Authority of the Minister for Industrial Relations)
Section 13 of that Remuneration Tribunals Act 1973 (the Act) provides that:
“The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carryinoug out or giving effect to this Act.”
On 6 May 1988, Mr Lewis Francis Wyvill QC was appointed as a Commissioner to assist the Hon J H Muirhead QC in the Royal Commission Examining Aboriginal Deaths in Custody. Mr Wyvill’s appointment is for the duration of the Royal Commission, that is, until 31 December 1990. Mr Wyvill is required to present his report by 31 December 1989 and to be available to consult with the Hon J H Muirhead as required after that date.
Mr Wyvill is one of four Commissioners appointed to assist Mr Muirhead. The three other Commissioners are retired Judges and were appointed under conditions appropriate for persons of that category. Mr Wyvill was appointed on a full-time basis under terms and conditions which took into account the need for Mr Wyvill to continue to meet the expenses of his practice as a Queen’s Counsel during the period of his appointment.
Under subsection 7(3) of the Act, the Tribunal shall determine the remuneration to be paid to holders of public office. Mr Wyvill’s office as a Commissioner is a public office as defined in paragraph 3(4)(a) of the Act. To facilitate Mr Wyvil’s remuneration in accordance with the agreed terms and conditions referred to above, it is necessary to exempt his appointment from the operation of the Act. (A similar exemption was granted when Mr F.X. Costigan QC was appointed as the Royal Commissioner for the inquiry into the activities of the Federated Ship Painters and Dockers Union of Australia.)
Paragraph 3(4)(v) of the Act provides that a reference to a public office does not include a reference to an office or appointment, or an office or appointment included in a class of offices or appointments, prescribed by the regulations for the purposes of that paragraph.
Regulation 5 of the Remuneration Tribunals (Miscellaneous Provisions) Regulations prescribes offices and appointments for the purposes of paragraph 3(4)(v). The effect of such a prescription is to exclude the relevant office or appointment from the operation of the Act.
A regulation has been made to amend regulation 5 by including a reference to the appointment of Lewis Francis Wyvill as a Commissioner to the Royal Commission Examining Aboriginal Deaths in Custody.
Mr Trevor Thomas Kaine was appointed as a part-time member of the ACT Gaming and Liquor Authority with effect from 7 December 1986. That position is a “public office” as defined in sub-section 3(4) of the Act. Mr Kaine was an officer of the Australian Public Service until his retirement on 30 April 1987.
Sub-section 7(11) of the Act provides that:
“ … (11) Except as prescribed, or as authorised or approved by or under any other law of the Commonwealth or any law of a Territory, a person is not entitled to be paid any remuneration in respect of his holding, or performing the duties of, a public office on a part-time basis if the person holds any office or appointment, or is otherwise employed, on a full-time basis in the service or employment of the Commonwealth, the Administration of a Territory, a public statutory corporation, an incorporated company referred to in paragraph 3(4)(da) or an incorporated company all the stock or shares in the capital of which is or are beneficially owned by the Commonwealth or by a public statutory corporation.”
As Mr Kaine was employed on a full-time basis by the Commonwealth until 30 April 1987, he was not entitled to be remunerated in respect of holding a part-time office on the ACT Gaming and Liquor Authority for the period 7 December 1986 to 30 April 1987.
Approval of the granting of an exemption to Mr Kaine from the operation of sub-section 7(11) of the Act has been made on the ground that Mr Kaine’s appointment to the ACT Gaming and Liquor Authority was unrelated to his employment in the Australian Public Service. The exemption is consistent with guidelines issued by the Minister for Administrative Services in June 1978.
Due to an administrative oversight, this matter has not previously been brought forward.
A regulation has been made to amend regulation 5 of the Remuneration Tribunals (Miscellaneous Provisions) Regulations to exempt the appointment of Mr Kaine to the ACT Gaming and Liquor Authority from the operation of sub-section 7(11) of the Act by excluding the office from the definition of a public office in paragraph 3(4)(a). This will enable Mr Kaine to be remunerated in relation to the duties performed in that office for the period 7 December 1986 to 30 April 1987.
Overview
The Remuneration Tribunals (Miscellaneous Provisions) Regulations (Amendment) Statutory Rules 1988 No 319 were enacted to address specific issues regarding the remuneration of certain public office holders under the Remuneration Tribunals Act 1973. This legislation was introduced by the Authority of the Minister for Industrial Relations to ensure that certain appointments could be remunerated in accordance with agreed terms and conditions. The primary objective of this amendment is to provide exemptions from the general provisions of the Act for specific appointments, thereby enabling appropriate remuneration for the individuals involved. The regulations amend the Remuneration Tribunals (Miscellaneous Provisions) Regulations to exclude certain appointments from the definition of a public office, thus facilitating the remuneration process for these officials.
Scope and Application
The Remuneration Tribunals (Miscellaneous Provisions) Regulations (Amendment) Statutory Rules 1988 No 319 relate to the Remuneration Tribunals Act 1973, which provides for the determination of remuneration for holders of public office. This Act applies to all public offices as defined in the legislation, but certain appointments can be excluded or exempted through regulations made under the Act. The amendment in question specifically addresses the appointment of Lewis Francis Wyvill as a Commissioner to the Royal Commission Examining Aboriginal Deaths in Custody, exempting his remuneration from the Act's purview to accommodate his ongoing professional commitments as a Queen’s Counsel. Similarly, the amendment provides an exemption for Mr Trevor Thomas Kaine, a part-time member of the ACT Gaming and Liquor Authority, who was previously ineligible for remuneration due to his full-time employment with the Commonwealth until his retirement. The exemption granted recognises the unrelated nature of his appointment to the Authority and his prior employment, in line with administrative guidelines. The regulations underscore the Act's flexibility in accommodating unique circumstances while maintaining the general framework for remuneration determination.
Key Provisions
The Remuneration Tribunals (Miscellaneous Provisions) Regulations (Amendment) Statutory Rules 1988 No 319 introduces specific amendments to existing regulations concerning the remuneration of public office holders under the Remuneration Tribunals Act 1973 (the Act). Under section 13 of the Act, the Governor-General has the authority to make regulations necessary or convenient for carrying out or giving effect to the Act, provided they do not conflict with it. Regulation 5, which pertains to the definition of public office, has been amended to include specific exemptions for certain appointments. These amendments ensure that certain individuals can be remunerated for their services despite existing restrictions.
The regulations impose specific obligations on the Remuneration Tribunal to determine the remuneration for holders of public office as per section 7(3) of the Act. However, certain appointments are exempted from the operation of the Act to allow for remuneration under specific conditions. For example, Mr. Lewis Francis Wyvill, appointed as a Commissioner for the Royal Commission Examining Aboriginal Deaths in Custody, is exempt from the general rule prohibiting remuneration for part-time public office holders who are also employed full-time elsewhere. Similarly, Mr. Trevor Thomas Kaine, appointed as a part-time member of the ACT Gaming and Liquor Authority, has been granted an exemption from the prohibition on part-time remuneration if the individual was previously employed full-time by the Commonwealth.
The Act imposes specific conditions and exemptions on the remuneration of public office holders. For instance, section 7(11) of the Act generally prohibits part-time remuneration for individuals holding other full-time positions. However, the amended regulations provide for exemptions where the part-time office is unrelated to the individual’s full-time employment, as seen in the cases of Mr. Wyvill and Mr. Kaine. These exemptions ensure that the remuneration provisions do not unfairly restrict individuals appointed to significant roles, provided their part-time positions are distinct from their full-time employment.
Breach of the provisions set out in the Act can lead to various civil or criminal consequences, depending on the nature and severity of the violation. While the specific penalties are not detailed in the provided text, it is clear that non-compliance with the remuneration regulations could result in legal action. The Act’s overarching purpose is to ensure fair and lawful remuneration practices for public office holders, and deviations from the prescribed regulations may lead to enforcement actions by the relevant authorities. The maximum penalties, if any, would be determined by the relevant courts based on the specific circumstances of the breach.