Commonwealth Numbered Regulations - Explanatory Statements

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PUBLIC SERVICE REGULATIONS (AMENDMENT) 1995 NO. 379

STATUTORY RULES 1995 No. 379

Issued by the Authority of the Prime Minister

Public Service Act 1922

Public Service Regulations (Amendment)

Subsection 97(1) 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, or necessary or convenient for carrying out or giving effect to the Act.

Division 6 of Part III of the Act contains the disciplinary provisions relevant to officers and employees of the Australian Public Service (the Service).

Sections 63B and 63C of the Act provide a power to direct an officer to perform other duties or to suspend the officer, and for removal and variation of the direction or suspension in relation to officers of the Service who are not unattached officers.

Section 63JA of the Act provides that the regulations may make provisions for and in relation to the application, subject to such modifications and adaptations as are specified, of sections 63B and 63C to unattached officers.

Section 63J defines "unattached officer" for the purposes of subdivision D of Division 6 of Part 111 of the Act which includes section 63JA. The term is defined so as to cover various categories of officers who may or may not hold an office in a Department and who are also employed outside the Service. An officer performing duty in a Department is excluded from the definition.

The purpose of the Regulations is to apply the provisions of the Act relating to suspension, which, under the terms of the Act, apply to officers who are not unattached officers, to unattached officers in so far as they can be applied. It is not intended to introduce significantly different provisions for unattached officers but merely to adapt sections 63B and 63C to apply them to unattached officers. The suspension provisions become necessary when an unattached officer seeks to return to the Department while subject to disciplinary action.

The details of the changes are given below.

Regulation 1 of the Regulations is a formal provision.

Regulation 2 of the Regulations inserts a new regulation 164A in the Regulations which provides that sections 63B and 63C of the Act apply to unattached officers with the modifications set out in a new Schedule 5 to the Regulations.

Regulation 3 of the Regulations adds new Schedule 5 to the Regulations. Schedule 5 contains adaptations of sections 63B and 63C of the Act modified so that they can be applied to the circumstances applying to unattached officers. Details of the modified sections 63B and 63C follow:

Modified subsections 63B(1) (2) and (3) provide the power for Secretaries to direct an unattached officer to temporarily perform other duties or suspend an unattached officer in connection with disciplinary action. Such a direction can be imposed in circumstances similar to those relevant to officers who are not unattached; ie. where the Secretary forms the opinion that it would be prejudicial to the effective operation of the Service, the interests of the public, the interests of the officer or other officers if the unattached officer were to return to duty in his or her office or in the Department. These provisions are similar in effect to subsections 63B(1), (1A) and (1B) of the Act.

Modified subsection 63B(4) provides that the Secretary must give the unattached officer an opportunity to be heard or be satisfied that such an opportunity is inappropriate before making a suspension direction. This provision is similar in effect to subsection 63B(1A) of the Act.

Modified subsection 63B(5) is a technical provision providing that no salary is payable during suspension except as provided in other parts of the modified sections 63B and 63C.

Modified subsection 63B(6) provides an entitlement to receive salary while suspended until the unattached officer is formally charged under the discipline provisions. This provision is similar in effect to subsection 63B(3) of the Act.

Modified subsection 63B(7) provides that suspension during a period of leave does not prevent continued payment of any salary entitlement in relation to that leave. This provision is similar in effect to subsection 63B(4) of the Act.

Modified subsection 63B(8) provides an entitlement to the suspended unattached officer to apply for any paid leave that he or she may have available. This provision is similar in effect to subsection 63B(5) of the Act.

Modified subsection 63B(9) provides an entitlement to unattached officers suspended without pay to engage in outside employment. This provision is similar in effect to subsection 63B(6) of the Act.

Modified subsection 63C(1) provides that a suspension direction may be revoked in accordance with section. This provision is similar in effect to subsection 63C(1) of the Act.

Modified subsection 63C(2) provides a power for the relevant Secretary to revoke a suspension direction or if satisfied there is hardship the relevant Secretary may direct that the unattached officer is to he paid all or part of his or her salary during suspension. The proposed provision also provides an obligation on the Secretary to consider whether the suspension should be removed or the salary paid after suspension has continued for 30 days. This provision is similar in effect to subsection 63C(2) of the Act.

Modified subsection 63C(3) requires the relevant Secretary to remove a direction of suspension or to perform other duties where a charge under the disciplinary provisions is not proved or proceeded with. This provision is similar in effect to subsection 63C(3)) of the Act.

Modified subsections 63C(4) and (5) provide a similar obligation on tile relevant Secretary as provided in proposed modified subsection 63C(3) in cases where an unattached officer is not found guilty of a criminal offence or the charge is riot proceeded with. These provisions are similar in effect to subsections 63C(4) and 63C(5) of the Act.

Modified subsection 63C(6) provides an entitlement to back pay where suspension is revoked under proposed modified subsections 63C(3) or (4). This provision is similar in effect to subsection 63C(6) of the Act.

Proposed modified subsection 63C(7) provides a limitation on any entitlement to back pay under subsection 63C(6): outside earnings are to be deducted. This provision is similar in effect to subsection 63C(7) of the Act.

Modified subsection 63C(8) is a technical provision relating to outside earnings for the purposes of subsections 63C(6) and (7). This provision is similar in effect to subsection 63C(8) of the Act.

Modified subsection 63C(9) provides for the recrediting of leave taken during suspension if suspension is revoked under proposed modified subsections 63B(3) or (4). This provision is similar in effect to subsection 63BC(9) of the Act.

Modified subsection 63C(10) provides that where dismissal follows suspension the period of suspension is not to count as service for any purpose. This provision is similar in effect to subsection 63C(10) of the Act.

Modified subsection 63C(11) provides the Public Service Commissioner with a discretion to determine whether a period of suspension counts as service where a suspended officer dies or retires from the Service. This provision is similar in effect to subsection 63C(11) of the Act.

Modified subsection 63C(12) provides a similar discretionary power by allowing the Public Service Commissioner, where the suspended unattached officer dies or retires, to authorise payment to the officer or his estate of back pay less outside earnings. This provision is similar in effect to subsection 63C(12) of the Act.

Modified subsection 63C(13) is a technical provision providing for cessation of a suspension direction or a direction to perform other duties when disciplinary action takes effect. This provision is similar in effect to subsection 63C(13) of the Act.

Modified subsection 63C(14) provides that the relevant Secretary may reimpose a direction re suspension or other duties in certain circumstances. 'This provision is similar in effect to subsection 63C(14) of the Act.

The Regulations commence on the day, of gazettal.