Commonwealth Numbered Regulations - Explanatory Statements

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PUBLIC SERVICE REGULATIONS (AMENDMENT) 1993 NO. 196

STATUTORY RULES 1993 No. 196

Issued by the authority of the Prime Minister

Public Service Act 1922

Public Service Regulations (Amendment)

Paragraph 97(1)(aa) of the Public Service Act 1922 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed.

Section 33 of the Act deals with the application of the merit principle and the prohibition of patronage, favouritism and discrimination in the Australian Public Service. Subsection 33(3) provides that powers under the Act in respect of appointments, promotions and transfers shall, subject to subsection (4), be exercised without discrimination that is unlawful under the Racial Discrimination Act 1975 (the RD Act) or the Sex Discrimination Act 1984 (the SD Act); without discrimination on a number of specific grounds listed in the subsection, including the ground of political affiliation; and without any other unjustified discrimination.

Subsection 33(4) provides in part that the reference in subsection (3) to discrimination shall be read as not including a reference to discrimination that is essential for the effective performance of the duties to which the appointment, promotion or transfer relates, is not unlawful under the RD Act or the SD Act and is declared by the regulations not to be discrimination for the purposes of subsection (3).

The Australian Electoral Commission (AEC) has a number of staff positions which are identified as politically sensitive, and where the occupants could be regarded as having a real or apparent conflict of interests if they were actively engaged in electoral or political affairs outside the duties of their positions. Regulations have therefore been made under section 33 of the Act to declare that discrimination on the ground of political affiliation in the selection of persons for such positions is deemed not to be discrimination under section 33.

Regulation 1 of the Regulations provides that the Public Service Regulations are amended as set out in the Regulations.

Regulation 2 of the Regulations inserts new regulation 71AA of the Public Service Regulations, which specifies that the appointment, transfer or promotion of a person to or in the AEC is declared not to be discrimination for the purposes of subsection 33(3) if the discrimination is essential for the effective performance of the duties and is not unlawful under the RD Act or the SD Act; the Electoral Commissioner has determined in writing that those duties could not be performed by a person actively engaged in electoral or political affairs; and the Commissioner has requested in writing, but not obtained a written undertaking, that the person will refrain from active engagement in electoral or political affairs when performing the duties.

The Regulations commence on gazettal.