Commonwealth Numbered Regulations - Explanatory Statements

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PUBLIC SERVICE AMENDMENT REGULATIONS 2004 (NO. 1) 2004 NO. 133

Subsection 79(1) of the Public Service Act 1999 (the Act) provides that the Governor-General may make regulations 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.

The purpose of the amending Regulations is to:

•       amend the arrangements applying to the re-engagement of a person who has resigned from the Australian Public Service (APS) to contest an election. The new arrangements reduce the scope for challenge, under section 44 of the Constitution, to the election to the Parliament of an APS employee who resigns and successfully contests an election; and

•       make a number of other technical amendments to the Public Service Regulations 1999 (the Principal Regulations).

Re-engagement of election candidates

Subsection 44(iv) of the Constitution provides, in part, that a person who holds an office of profit under the Crown is incapable of being chosen, or of sitting, as a Senator or Member of the House of Representatives.

Section 32 of the Act provides that if a person resigned as an APS employee in order to contest an election prescribed by the regulations, then, provided that the resignation took effect not earlier than 6 months before the closing date for nominations and the person was a candidate in the election and failed to be elected, the person is entitled to be engaged again as an APS employee, in accordance with the regulations and within the time limits prescribed by the regulations.

Prior to these amendments, regulations 3.13 to 3.15 of the Principal Regulations set out arrangements for the purposes of section 32 of the Act. Subregulation 3.15(6) provided that the period between a person's resignation and engagement again counts as service for the purposes of leave accruals.

In 1997 the House of Representatives Standing Committee on Legal and Constitutional Affairs reported on `Aspects of section 44 of the Australian Constitution-Subsections 44(1) and 44(iv)'. In its submissions to the Committee, the Attorney-General's Department observed, in the context of subsection 44(iv), that a statutory provision dealing with a power to reappoint or reinstate a relevant person (after they resigned from an office of profit under the Crown) should provide that `the period between resignation and reappointment (should) not count as service'. The Australian Government Solicitor was asked to comment on this aspect of the Attorney-General's Department's submission as it applies to the framework under the Public Service Act 1999. The Australian Government Solicitor confirmed that an APS employee holds an office of profit under the Crown and that it would be prudent to make a change to the Principal Regulations, namely to remove the provision which recognises the period between resignation and engagement again as service for the purpose of accrual of leave entitlements, as this presents a potential avenue of Constitutional challenge to the election of a former APS employee.

The amending Regulations amend the arrangements for re-engagement of such former APS employees to:

•       provide that the period between resignation and re-engagement will no longer count as service for leave accrual purposes, but will not break continuity of service for the purpose of calculating leave entitlements and redundancy pay; and

•       clarify who a person must apply to for re-engagement under section 32 of the Act if, after an election, a machinery of government change has altered the person's previous agency in some way, for example, by moving that person's functions to a different agency.

Prior to these amendments, the Principal Regulations were worded such that only leave accruals counted as service during the period between a person's resignation to contest an election and their engagement again. In the absence of any other entitlements being mentioned, the Principal Regulations did not reflect the original intent that such a period be counted as service for the purpose of all entitlements. The amending Regulations correct this unintended consequence.

While the amending Regulations have the effect of reducing employee entitlements (because employees will no longer accrue leave during the break in employment), the amendment is necessary to avoid the legal risk that APS employees who resign to contest an election could be argued not to have genuinely severed their employment relationship for the purposes of section 44 of the Constitution. In addition, the new provision is more beneficial for employees in that it provides that the break in employment does not break continuity of employment for the purposes of calculating an employee's redundancy entitlements.

Other technical amendments

The amending Regulations also make some minor changes to the Principal Regulations by:

•       amending regulation 3.12 to require gazette notification of any engagements made under clause 4.2A of the Public Service Commissioner's Directions (the Directions, which relate to issues such as diversity and merit in employment) and to update the cross referencing in this regulation to reflect the renumbering of the Directions; and

•       making a number of technical amendments, including to the definitions in the Principal Regulations of the Classification Rules and the Commissioner's Directions.

Details of the amending Regulations are set out in the Attachment.

The amending Regulations commence on the date of their notification in the Gazette.

ATTACHMENT

Regulation 1 names the Regulations as the Public Service Amendment Regulations 2004 (No. 1).

Regulation 2 provides that the Regulations commence on the date of their notification in the Gazette.

Regulation 3 provides that Schedule 1 amends the Public Service Regulations 1999 (the Principal Regulations).

Schedule 1       Amendments

Item 1       Subregulation 3.9 (4) and 3.9A (5)

This item substitutes the references to `any directions issued by the Commissioner under section 36 of the Act' by simply referring to `the Commissioner's Directions'. There is no need to refer to the Commissioner's Directions in the longer form as the Dictionary to the Regulations includes a new definition of `Commissioner's Directions', as inserted by item 9, below.

Item 2       Subregulations 3.12(2)

This item inserts new subregulation 3.12(2) in place of former subregulation 3.12(2). In new subregulation 3.12(2), the term `Commissioner's Directions' replaces the term `Public Service Commissioner's Directions 1999' (first occurring). A new definition of `Commissioner's Directions' is inserted by item 9, below.

Item 3       Subregulation 3.12(3)

Regulation 3.12 of the Principal Regulations requires the notification of certain employment decisions, including the engagement of persons as ongoing employees, in the Commonwealth of Australia Gazette (the Gazette). Prior to these amendments, subregulation 3.12(3) provided that if a decision to promote an ongoing APS employee was made in accordance with the measures mentioned in clause 4.6 of the Commissioner's Directions, the Gazette notification must include a statement to the effect that `This promotion is made in accordance with the provisions of subclause 4.6(2) of the Public Service Commissioner's Directions 1999 - similar employment opportunity previously notified'.

Clause 4.2A of the Commissioner's Directions, inserted into the Directions in March 2003, enables the engagement of a non-ongoing APS employee as an ongoing APS employee without the normal merit selection considerations, in exceptional circumstances. A note at the end of this clause of the Commissioner's Directions advises APS Agencies that it is intended to amend the Principal Regulations to provide that where such engagements occur, an Agency Head must ensure that the engagement is notified in the Gazette and that the notice includes a statement to the effect that `This engagement was authorised by the Public Service Commissioner on (date) under clause 4.2A of the Public Service Commissioner's Directions 1999'- exceptional circumstances'.

This item inserts a new subregulation 3.12(3) to require the notification in the Gazette of the engagement of a non-ongoing employee as an ongoing employee in the circumstances set out in clause 4.2A of the Directions.

Former subregulation 3.12(3) is renumbered as subregulation 3.12(4) and the reference to `clause 4.6' is amended to `clause 4.6A' to reflect the earlier renumbering of the Directions. In addition, the term `Commissioner's Directions' replaces the existing term `Public Service Commissioner's Directions 1999' (first occurring). A new definition of `Commissioner's Directions' is inserted by item 9, below.

Item 4       Subregulation 3.14(1)

This item replaces subregulation 3.14(1) with a new subregulation to provide that a person to whom section 32 of the Public Service Act 1999 (the Act) applies is entitled to be engaged again as an APS employee if, within the required time, the person applies to the relevant authority. This new subregulation clarifies to whom an APS employee must apply for engagement, following resignation to contest an election. The term `relevant authority' replaces the phrase `Agency Head of the Agency in which the person was employed when the person resigned'. This amendment takes account of circumstances in which, for example, a person's previous duties are no longer located in the same agency. `Relevant authority' is defined by new subregulation 3.14(3) (see item 5 below).

Item 5       Subregulation 3.14(3), before definition of required time

This item inserts a new definition of `relevant authority' in subregulation 3.14(3). `Relevant authority' is defined to mean the Agency Head of the Agency in which the person was employed when the person resigned from the APS (in circumstances where that Agency still exists), or, if the functions to which the person's duties related, or mainly related, have been transferred to another Agency, the Agency Head of that Agency, or, in any other case, the Public Service Commissioner.

An example of where the Public Service Commissioner would be the `relevant authority' is where, as a result of a machinery of government change, the duties that the person previously performed prior to resigning to contest an election have been moved out of APS employment.

Item 6       Subregulation 3.15(6)

Former subregulation 3.15(6) provided that the period between a person's resignation and engagement again counts as service for the purpose of leave accruals.

The Explanatory Memorandum which was provided when the Principal Regulations were presented for consideration by the Federal Executive Council in 1999 stated that subregulation 3.15(6) provides that the period between the person's resignation and again being engaged counts as service as an APS employee for all purposes.

Former subregulation 3.15(6) did not reflect this intent and only referred to the period counting as service for the purpose of leave accruals. Because there was no mention of other entitlements, resignation to contest an election could result in any APS service prior to a person's re-engagement after unsuccessfully contesting an election not counting as service for the purposes of calculating the person's redundancy pay benefit should the person be made redundant at some later stage in their career. This was an unintended consequence of the wording of the former subregulation.

This item substitutes subregulation 3.15(6) with new subregulations 3.15(6) and 3.15(7) to provide that the period, while no longer recognised for the purposes of accrual of leave, does not break continuity of the person's service for the purposes of calculation of leave entitlements or redundancy pay under an award, certified agreement, AWA or determination under the Act.

While new subregulations 3.15(6) and 3.15(7) have the effect of reducing employee entitlements (because employees will no longer accrue leave during the break in employment), the amendment is necessary to avoid the legal risk that APS employees who resign to contest an election could be argued not to have genuinely severed their employment relationship for the purposes of section 44 of the Constitution. In addition, the provisions are more beneficial for employees in that they provide that the break in employment does not break continuity of employment for the purposes of calculating an employee's redundancy entitlements.

New subregulations 3.15(6) and 3.15(7) also correct a misapprehension created by former subregulation 3.15(6) which purported to provide that the period between resignation and engagement again counted as service for the purpose of accrual of all leave entitlements. In reality, the long service and maternity leave legislation determines how such a period should be treated for these purposes and regulations made under the Act are of no effect if inconsistent with primary legislation.

The new regulations recognise the primacy of the long service and maternity leave legislation in this area through the inclusion of a `Note' under subregulation 3.15(7) which explains that the Long Service Leave (Commonwealth Employees) Act 1976 and the Maternity Leave (Commonwealth Employees) Act 1973 establish entitlements in relation to these two forms of leave.

Item 7       Paragraph 5.5(b)

This item deletes paragraph 5.5(b) of the Principal Regulations, which refers to `directions given by the Commissioner under subsection 11(1) of the Act', and replaces it with a reference to the `Commissioner's Directions'. A new definition of `Commissioner's Directions' is inserted by item 9, below.

Items 8 and 9 Dictionary, definitions of Classification Rules and Commissioner's Directions

The Dictionary to the Principal Regulations defines the terms, `Classification Rules' and `Commissioner's Directions'.

Prior to these amendments, these definitions referred to these respective instruments `as in force at the commencement of these Regulations'. As a result, any references to these instruments in the body of the Principal Regulations were read as a reference to that instrument as in force on 5 December 1999, being the date of commencement of the Principal Regulations, regardless of any subsequent amendments. The Classification Rules and Commissioner's Directions are amended from time to time, but section 49A of the Acts Interpretation Act 1901 prevents the use of this term in the Principal Regulations because only Acts and Regulations can be referred to as varied from time to, time, and not other subordinate instruments such as the Directions and Classification Rules (unless expressly authorised by provision in the primary legislation). The primary legislation does not provide such authorisation; consequently the Principal Regulations have been amended to refer to a specific date of effect, and these references in the Principal Regulations will need to be updated whenever a further revision of either document is issued.

Item 8 replaces the definition of the Classification Rules with one that provides that this term means `the Public Service Classification Rules 2000, as in force on 9 June 2004.

Item 9 replaces the definition of the Commissioner's Directions with one that provides that this term means `the Public Service Commissioner's Directions 1999, as in force on 9 June 2004.