PUBLIC SERVICE AMENDMENT REGULATION 2013 (NO. 2) (SLI NO 110 OF 2013) EXPLANATORY STATEMENT

The Public Service Act 1999 (the 'Act') provides for the establishment and management of the Australian Public Service ('APS').

The Act will be substantially amended on 1 July 2013 upon commencement of the Public Service Amendment Act 2013 (the 'Amendment Act').

Subsection 79(1) of 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.

Section 33 of the Act provides for the making of regulations which provide details of APS employees' entitlement to review of APS employment decisions and actions.

Section 50 of the Act provides for certain functions of the Merit Protection Commissioner and for the making of regulations to prescribe additional functions of the Merit Protection Commissioner to those set out in section 50 of the Act.

Subsection 72A(1) of the Act as amended provides for the protection of certain information known as 'protected information' obtained by the Australian Public Service Commissioner (the 'Commissioner') in the course of performing certain functions, and for the making of regulations to add reference to additional provisions identifying further functions which are to be included in the definition of 'protected information' under section 72A of the Act. Regulation 6.6 of the Public Service Regulations 1999 as amended by the Public Service Amendment Regulation 2013 (No. 1) is made under subsection 72A(1) of the Act as amended.

Subsection 72A(7) of the Act as amended provides that certain persons are not compellable in certain proceedings to disclose 'protected information' obtained by the Commissioner while performing certain listed functions. Paragraph 72A(7)(e) provides for the making of regulations to add reference to additional provisions identifying further functions which are to be included. Regulation 6.7 of the Public Service Regulations 1999 as amended by the Public Service Amendment Regulation 2013 (No. 1) is made under paragraph 72A(7)(e) of the Act as amended.

Section 72C of the Act as amended aims to protect agencies and APS employees who provide information to the Commissioner to assist in the performance of certain of the Commissioner's functions. The protections include provisions relating to the non-admissibility of certain material, the non-liability to penalty, preservation of legal professional privilege. The protections also include a provision that the giving of information that includes personal information will be considered an 'authorised disclosure' under the Privacy Act 1988. The relevant functions are listed in subsection 72C(2), and paragraph 72C(2)(c) provides for a regulation making power to prescribe further functions of the Commissioner to which section 72C applies. Regulation 6.8 of the Public Service Regulations 1999 as amended by the Public Service Amendment Regulation 2013 (No. 1) is made under paragraph 7.2C(2)(c) of the Act as amended.

Section 78A of the Act as amended provides for the circumstances in which the Commissioner and the Merit Protection Commissioner and those acting on their authority are immune from civil proceedings. Paragraph 78A(1)(h) provides a regulation making power to prescribe a function of the Commissioner (additional to those listed in section 78A) to which the immunity provision will apply. Regulation 7.9 of the Public Service Regulations 1999 as amended by the Public Service Amendment Regulation 2013 (No. 1) is made under paragraph 78A(1)(h) of the Act as amended.

The Public Service Amendment Regulation 2013 (No. 1) (the 'March Regulations') made a number of amendments to the Public Service Regulations 1999 (the 'Principal Regulations') to support the reforms to the APS facilitated by the Amendment Act. The commencement day for Schedules 1-4 of Amendment Act and the March Regulations is 1 July 2013.

Included in the March Regulations was regulation 6.1A which gave the Commissioner the new function of inquiring into alleged breaches of the APS Code of Conduct by certain statutory office holders.

Public Service Amendment Regulation 2013 (No. 2) (the 'Amending Regulation') amends the March Regulations on registration, which will occur prior to 1 July 2013 so that when the March Regulations commence on 1 July 2013 the Public Service Regulations 1999 will be amended in the revised form.

The purpose of the Amending Regulation is to provide transitional regulations to assist with giving effect to provisions of the Principal Regulations (as amended by the March Regulations), and to remedy an omission in the March Regulations by inserting reference to regulation 6.1A in regulations 6.6, 6.7, 6.8 and 6.9. The opportunity has also been taken to make minor drafting amendments to regulations 6.6, 6.7, 6.8 and 6.9 to ensure consistency of drafting in the Principal Regulations as amended.

The Amending Regulation makes amendments to certain items in the March Regulations which insert amendments to Part 6 of the Principal Regulations with effect from 1 July 2013--specifically, the Amending Regulation amends regulations 6.6-6.9 to insert reference in each of those regulations to the Commissioner's function under regulation 6.1A of the Principal Regulations, as amended.

Regulation 6.1A gives the Commissioner the function of inquiring into alleged breaches of the APS Code of Conduct by certain statutory office holders. Information obtained in connection with an inquiry into alleged misconduct by a statutory office holder is likely to be of a highly sensitive nature, similar to information obtained in connection with any other of the Commissioner's review and inquiry functions, and therefore should be subject to the same protections and immunities as provided in sections 72A, 72C and 78A of the Act.

These references to regulation 6.1A were omitted inadvertently from the March Regulations, and the Amending Regulation remedies that omission.

In drafting the Amending Regulation to insert reference to regulation 6.1A appropriately, the opportunity has also been taken to include minor drafting revisions to regulations 6.6, 6.7, and 6.9 as drafted in the March Regulation to make them consistent in style with regulation 6.8.

Under the Principal Regulations, the Merit Protection Commissioner has a function of reviewing applications from APS employees who seek review of actions affecting their employment, including determinations that an APS employee has breached the Code of Conduct and the sanctions imposed by an agency for such a breach. Under the Principal Regulations, the Merit Protection Commissioner also undertakes certain recruitment functions on behalf of agencies through the establishment of Independent Selection Advisory Committees (ISACs). The March Regulations will make changes to the review and recruitment functions of the Merit Protection Commissioner provided for in Parts 4 and 5 of the Principal Regulations.

The changes to the Merit Protection Commissioner's functions made by the March Regulations will improve flexibility and streamline procedures relating to the functions. The opportunity was also taken to ensure that the Principal Regulations operated in a way that was consistent with the original policy intent for review and certain recruitment matters.

The March Regulations do not include transitional provisions dealing with the review and recruitment functions of the Merit Protection Commissioner. The Amending Regulation inserts explicit transitional provisions into the March Regulations to avoid doubt and reduce the risk of challenge to decisions of the Merit Protection Commissioner.

* clarify that the Merit Protection Commissioner will follow the transitional arrangements set out in the Amendment Act when conducting reviews of agency Code of Conduct decisions affected by the transitional arrangements in the Amendment Act;

* provide that the subregulations 4.7(1A), 4.7(1B) and 4.11(1A) apply to the conduct of, and recommendations made by, an ISAC after commencement except where candidates for the employment opportunity have already been advised--for example through a candidate information kit--that the Principal Regulations in place prior to 1 July 2013 will apply in the particular recruitment exercise;

* provide that if a promotion subject to review under the Principal Regulations was notified in the Public Service Gazette prior to 1 July 2013, the Principal Regulations in place prior to 1 July 2013 will apply to the conduct of the promotion review.

An assessment was made under guidelines issued by the Office of Best Practice Regulations, which indicated that a Regulation Impact Statement (RIS) was not required for the Amending Regulation because the amendments are of a minor or machinery nature and do not substantially alter existing arrangements.

The Acts specify no conditions that must be met before the power to make the Regulation may be exercised.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Amending Regulation will commence on the day after it is registered on the Federal Register of Legislative Instruments. While the Amending Regulation is expressed to commence after registration it will be amending the March Regulations which will commence on 1 July 2013.

Authority: Sections 33 and 50, subsection 72A(1) and 79(1), paragraphs 72A(7)(e),
72C(2)(c) and 78A(1)(h) of the Public Service Act 1999 as amended by

The Amending Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

* provide transitional regulations with regard to the changes to certain review and recruitment functions of the Merit Protection Commissioner, and

* make minor amendments to include reference to the Australian Public Service Commissioner's function under Public Service Regulation 6.1A of inquiring into alleged breaches of the Code of Conduct by statutory office holders.

A Statement of Compatibility with Human Rights has been completed for the Amending Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement's assessment is that the Amending Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

In respect of amendments relating to the Merit Protection Commissioner's functions, the amendment regulation engages the following human rights.

The right to privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR) prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. It also prohibits unlawful attacks on a person's reputation.

The Amending Regulation provides a transitional regulation for the operation of Regulation 5.12 in the Principal Regulations as amended by the March Regulation which clarifies that parties to a review of a promotion decision are not entitled to statements submitted by other parties under regulation 5.12. This change assists in protecting the privacy of personal information while ensuring procedural fairness.

The right to work and rights in work are contained in Articles 6(1), 7, and 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The Amendment Act includes an Employment Principle that provides that the APS is a career-based public service which makes fair employment decisions with a fair system of review.

(i) Part 4 of the Principal Regulations contains the procedures for the operation of Independent Selection Advisory Committees (ISACs). An ISAC is an independent committee established by the Merit Protection Commissioner at the request of an agency head to make recommendations about the suitability of candidates in a staff recruitment exercise. The March Regulations will amend Part 4 to provide an ISAC with the flexibility to use modern recruitment methods, and help to ensure that the independence of an ISAC is maintained for the benefit of agencies and APS employees. The Amending Regulation assists with the fair and transparent implementation of the amendments after commencement day (1 July 2013).

(ii) Part 5 of the Principal Regulations contains the procedures for review of actions in the APS. The March Regulation will change the provisions in Part 5 to improve the operational efficiency and effectiveness of the review of action framework, and to assist APS employees to understand better their review rights. The Amending Regulation will assist with the fair and transparent implementation of the amendments after commencement day (1 July 2013).

The Amending Regulation will promote APS employees' rights in work. The transitional provisions will ensure that the entitlements of APS employees to review of employment decision-making are preserved for actions underway on commencement day. They do not remove any procedural protections from employment decision making.

In respect of the amendments relating to the Australian Public Service Commissioner's functions, this legislative instrument does not engage any of the applicable rights or freedoms.

In respect of the amendments relating to the Merit Protection Commissioner's functions, it promotes and advances a number of human rights, and, to the extent that it may limit any human rights, those limitations are reasonable, necessary and proportionate.

In respect of the Australian Public Service Commissioner's functions, this legislative instrument is compatible with human rights as it does not raise any human rights issues.

ATTACHMENT

Details of the Public Service Amendment Regulation 2013 (No. 2)

Section 1--Name of Regulation

This section provides that the title of the Regulation is the Public Service Amendment Regulation 2013 (No. 2).

Section 2--Commencement

This section provides for the Regulation to commence on the day after it is registered.

Section 3--Authority

This section provides that the Regulation is made under the Public Service Act 1999 and the Public Service Amendment Act 2013.

Section 4--Schedule(s)

This section provides that each instrument that is specified in a Schedule to the Regulation is amended or repealed as set out in the applicable items in the relevant Schedule, and any other item in a Schedule to the Regulation has effect according to its terms.

Schedule 1--Amendments

Item [1]--Item 52 of Schedule 1 (inserted regulation 6.6 of the Public Service Regulations 1999)

This item amends item 52 of Schedule 1 to the March Regulations by repealing Regulation 6.6 of the Principal Regulations (as amended by the March Regulations) and substituting a new regulation 6.6, which adds reference to regulation 6.1A of the Principal Regulations (as amended) and simplifies the wording of regulation 6.6. It inserts a reference to regulation 6.1A for the purposes of paragraph (c) of the definition of 'protected information' in subsection 72A(1) of the Act. The effect is to extend the protections granted by regulation 72A of the Act to certain information the Commissioner may obtain in the course of exercising the function under regulation 6.1A of the Principal Regulations (as amended).

Item [2]--Item 52 of Schedule 1 (inserted regulation 6.7 of the Public Service Regulations 1999)

This item amends item 52 of Schedule 1 to the March Regulations by repealing Regulation 6.7 of the Principal Regulations (as amended by the March Regulations) and substituting a new regulation 6.7, which adds reference to regulation 6.1A of the Principal Regulations (as amended) and simplifies the wording of regulation 6.7 It inserts a reference to regulation 6.1A for the purposes of paragraph 72A(7)(e) of the Act. The effect is that certain persons involved in inquiry are not compellable in certain proceedings to disclose protected information obtained by the Commissioner in the course of exercising the function under regulation 6.1A of the Principal Regulations (as amended).

Item [3]--Item 52 of Schedule 1 (inserted regulation 6.8 of the Public Service Regulations 1999)

This item amends item 52 of Schedule 1 to the March Regulations by omitting the words 'regulation 6.1 is prescribed', from regulation 6.8 of the Principal Regulations (as amended by the March Regulations) and substituting 'regulations 6.1 and 6.1A are prescribed'. The effect is that persons who provide information to the Commissioner to assist with inquiries under regulation 6.1A of the Principal Regulations (as amended) are granted appropriate protections, consistent with protections given to persons assisting the Commissioner with other functions, in respect of the admissibility of evidence, liability to penalty, preservation of legal professional privilege and liability under the Privacy Act 1988.

Item [4]--Item 52 of Schedule 1 (inserted regulation 6.9 of the Public Service Regulations 1999)

This item amends item 52 of Schedule 1 to the March regulations by repealing Regulation 6.9 of the Principal Regulations (as amended by the March Regulations) and substitutes a new regulation 6.9, which adds reference to regulation 6.1A of the Principal Regulations (as amended) and simplifies the wording of regulation 6.9 It inserts a reference to regulation 6.1A for the purposes of paragraph 78A(1)(h) of the Act. The effect is that the Commissioner and certain persons assisting the Commissioner in the course of exercising the function under regulation 6.1A of the Principal Regulations (as amended) have immunity from civil proceedings, consistent with the immunity granted in respect of the Commissioner's other functions.

Item [5]--Insertion of note into Item 73 of Schedule 1

This item inserts a note into Item 73 of Schedule 1 to the March Regulations after the definition of commencement day in Regulation 10.1 of the Public Service Regulations 1999. 'Commencement day' is defined to mean the day on which Schedules 1 to 4 to the Public Service Amendment Act 2013 commence. The note states that the commencement day is 1 July 2013.

Item [6]--Insertion of regulations into Item 73 of Schedule 1

This item inserts four new regulations into Item 73 of Schedule 1 to the March Regulations at the end of Part 10 of the Principal Regulations (as amended) which deals with transitional arrangements required by the Public Service Amendment Act 2013 (the 'Amendment Act') and Principal Regulations (as amended by the March Regulations).

Regulation 10.8 provides that if in conducting an investigation into an alleged breach of the APS Code of Conduct, the agency head has applied the transitional provisions in Items 22, 23 or 24 of Schedule 4 to the Amendment Act, the Merit Protection Commissioner will review the determination and any sanction imposed in accordance with the same transitional requirements.

The Amending Regulation also inserts a note to regulation 10.8 which explains the transitional provisions in Items 22, 23 and 24 of Schedule 4 to the Amendment Act. By way of background:

* Item 22 relates to an investigation, begun before 1 July 2013, to determine whether an APS employee in an agency had breached the Code of Conduct. It requires that the Act as it applied prior to 1 July 2013 (and the associated regulations and procedures in force) continue to apply at, and after, 1 July 2013 in relation to the investigation and determination. Any sanction imposed will be determined in accordance with the procedures established under paragraph 15(3)(b) of the Act as amended by the Amendment Act.

* Item 23 relates to a finding, before 1 July 2013, that an APS employee in an agency had breached the Code of Conduct, with no sanction having been imposed. It requires that any sanction imposed must be determined in accordance with the procedures established under paragraph 15(3)(b) of the Act amended by the Amendment Act.

* Item 24 relates to an allegation made before 1 July 2013 that an APS employee in an agency had breached the Code of Conduct. It requires that the Act as amended by the Amendment Act (and the regulations and procedures in force for that Act) apply as if a reference to the Code of Conduct is a reference to the Code of Conduct as it applied prior to 1 July 2013.

Regulation 10.9 provides transitional provisions to apply to reviews of actions lodged by APS employees before commencement day.

Subregulation 10.9(1) provides that the transitional arrangement in subregulation 10.9(2) apply in certain circumstances. These circumstances arise where an APS employee had applied for a review of action or the agency had referred a review to the Merit Protection Commissioner, and that review had not been completed on 1 July 2013. The provision acknowledges that transitional provisions for reviews lodged under subregulation 5.24(2) are provided for separately in regulation 10.8.

Subregulation 10.9(2) provides that the Principal Regulations as they applied prior to 1 July 2013 will continue to apply on, or after, 1 July 2013 in relation to the reviews identified in subregulation 10.9(1).

Subregulation 10.9(3) provides that the transitional arrangements in subregulation 10.9(4) apply in certain circumstances. These circumstances arise where an APS employee had applied for a review of action by an agency head, and the review had not been completed before 1 July 2013, and after 1 July 2013 the employee applied for review by the Merit Protection Commissioner. The provision acknowledges that transitional provisions for reviews lodged under subregulation 5.24(2) are provided for separately in regulation 10.8.

Subregulation 10.9(4) provides that the Principal Regulations continue to apply on, or after, 1 July 2013 in relation to a review by the Merit Protection Commissioner as identified in subregulation 10.9(3).

Regulation 10.10 provides clarity on when an ISAC and an agency head are able to use the amendments to regulations 4.7 and 4.11 in Part 4 in the Principal Regulations as amended by the March Regulations.

Subregulation 10.10(1) provides that subregulation 10.10(2) applies in two circumstances:

* if before 1 July 2013, an ISAC was established and had yet to make a recommendation; and

* if a recommendation made by an ISAC before 1 July 2013 was still in force (a recommendation stays in force for 12 months from the date of the notification of the employment opportunity in the Public Service Gazette).

Subregulation 10.10(2) provides that the Principal Regulations as amended by the March Regulations continue to apply on, or after, 1 July 2013 in relation to the ISAC and in relation to the recommendation identified in subregulation 10.10(1).

Subregulation 10.10(3) qualifies the transitional arrangement in subregulation 10.10(2) by providing that where a person has been given an expectation that the Principal Regulations in place prior to 1 July 2013 will apply then those regulations continue to apply. The inserted note to the subregulation clarifies the arrangements further.

Regulation 10.11 provides that if a promotion was notified in accordance with the Principal Regulations in place prior to 1 July 2013, those regulations continue to apply on, or after, 1 July 2013 in relation to any entitlement to have access to a statement given as part of a review of the promotion.

Commonwealth Numbered Regulations - Explanatory Statements