Public Employment (Consequential and Transitional) Amendment Regulations 2000 (No. 1) 2000 No. 332

EXPLANATORY STATEMENT

Statutory Rules 2000 No. 332

Issued by authority of the Prime Minister

Public Employment (Consequential and Transitional) Amendment Act 1999

Public Employment (Consequential and Transitional) Amendment Regulations 2000 (No. 1)

The Public Employment (Consequential and Transitional) Amendment Act 1999 (the Act') received the Royal Assent on 11 November 1999. The Act and its accompanying Public Employment (Consequential and Transitional) Regulations 1999 ('the PECTA Regulations 1999') commenced on 5 December 1999, being the same day as the Public Service Act 1999 ('the PS Act 1999') commenced.

The Public Service Act 1922 ('the old Act') and the Merit Protection (Australian Government Employees) Act 1984 ('the Merit Protection Act') were repealed by the Act with effect from 5 December 1999.

The Act deals with the consequential and transitional matters arising from the repeal of the old Act and the Merit Protection Act and the enactment of replacement legislation, namely the PS Act 1999').

Subsection 14(1) of the Act provides that the Governor-General may make regulations in relation to matters required or permitted to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Paragraph 14(3)(f) of the Act provides that regulations may be made for matters of a transitional or saving nature arising from the repeal of the Merit Protection Act.

Paragraph 14(4)(a) of the Act provides that regulations made under subsection 14(3) of the Act may provide for the Merit Protection Act to continue in force for the purposes of the regulations, even though the Merit Protection Act has been repealed by the Act.

Subsection 14(5) of the Act provides that the regulations may:

(a)       amend other Acts, by making amendments of a kind that are consequential on the repeal of the old Act and its replacement by the PS Act 1999; and

(b)       make provision of a transitional or saving nature in relation to amendments made under paragraph (a).

Subsection 14(6) of the Act provides that, for the purposes of the Amendments Incorporation Act 1905, amendments made by regulations under paragraph 14(5)(a) of the Act are to be treated as if they had been made by an Act.

Subsection 14(7) of the Act provides that regulations made under section 14 of the Act within one year after the commencement of section 14 may commence on a day earlier than the day on which they are made, but not earlier than the commencement of section 14.

The Regulations:

*       make a new Regulation 6.2 under subsection 14(3) of the Act continuing the operation of section 80 ("Agency not to be sued") of the Merit Protection Act to any action taken under that section before the commencing time, as if that Act had not been repealed; and

*       make a number of consequential amendments to other Acts under subsection 14(5) of the Act arising from the repeal of the old Act and the enactment of the PS Act 1999. The Acts amended by the Regulations and their respective date of commencement for the amendments are as follows:

=       Amendments commencing 5 December 1999 to correct errors contained in Schedule 1 of the Act;

-       Australian Capital Territory Government Service (Consequential Provisions) Act 1994 (subsections 25(5) and 25(6))

-       Commonwealth Authorities and Companies Act 1997 (subsection 23(2))

-       Director of Public Prosecutions Act 1983 (paragraph 31(1A)(b))

-       Members of Parliament (Staff) Act 1984 (subsections 14(1) and 21(1))

-       Superannuation Act 1976 (paragraph 14A(1)(a))

=       Further consequential amendments commencing 5 December 1999 not previously identified in Schedule 1 of the Act;

-       Administrative Decisions (Judicial Review) Act 1977 (Schedule 2, paragraph (r))

-       Commonwealth Electoral Act 1918 (paragraph 60(4)(b) and paragraph 273A(7)(a))

-       Members of Parliament (Staff) Act 1984 (section 3)

-       Remuneration Tribunal Act 1973 (paragraph 4(4)(b) and subsection 8(4))

=       Amendments commencing 23 December 1999 to coincide with the commencement of the provisions of the Principal Act being amended;

- Federal Magistrates Act 1999 (subsections 97(1), 104(1), 106(1) 109(1), 112(1); sections 100 and 101))

=       Amendments commencing 13 March 2000 to coincide with the commencement of the provisions of the Principal Act being amended;

-       Commonwealth Authorities and Companies Act 1997 (subsection 27A(2))

As a result of the amendments to the PECTA Regulations 1999, existing Item 1 of Schedule 1 of the PECTA Regulations 1999, which amended the Safety, Rehabilitation and Compensation Act 1998 under subsection 14(5) of the Act, will be relocated as Item 1 of Part 9 of Schedule 1 of the PECTA Regulations 1999.

Where the Regulations are making consequential amendments to other Acts the Ministers responsible for those Acts have given their authority for the respective portfolio legislation to be amended in accordance with the Regulations.

Regulation 6.2 which continues the operation of section 80 of the Merit Protection Act commences on 5 December 1999 in accordance with the provisions of Regulation 2(a) of the Regulations.

Details of the Regulations for the purposes of subsection 14(3) and subsection 14(5) of the Act are set out in the Attachment.

ATTACHMENT

Regulation 1 provides that the name of the Regulations is the Public Employment (Consequential and Transitional) Amendment Regulations 2000.

Regulation 2 of the Regulations provides that the Regulations are taken to have commenced, as follows:

(a)       on 5 December 1999 - regulations 1, 2 and 3 and Schedule 1; and

(b)       on 23 December 1999 - Schedule 2;

(c)       on 13 March 2000 - Schedule 3.

Regulation 3 of the Regulations provides for the Public Employment (Consequential and Transitional) Regulations 1999 to be amended as provided for in Schedules 1, 2 and 3.

Schedule 1 Amendments taken to have commenced on 5 December 1999

Regulation 6.1 Amendment of Acts

This amendment substitutes a new Regulation 6.1.

The Regulation 6.1 provides a list of the Acts being amended under the authority of subsection 14(5) of the Act with affect from 5 December 1999. The precise details of the amendments to each Act are provided for in various Parts of Schedule 1 of the Regulations.

The previous Regulation 6. 1, which identified the Safety, Rehabilitation and Compensation Act 1988 as being amended under subsection 14(5) of the Act is now listed as item (i) in the revised Regulation 6.1.

Regulation 6.2       Continued operation of section 80 of Merit Protection (Australian Government Employees) Act 1984

The Regulation is being made under subsection 14(3) of the Act that enables regulations to be made of a transitional or saving nature arising from the repeal of the Merit Protection Act.

This Regulation will include a new Regulation 6.2 to continue the operation of section 80 of the Merit Protection Act ("Agency not to be sued") to apply to any action taken under that section before 5 December 1999, as if that Act had not been repealed.

Section 80 of the Merit Protection Act has been relied upon in the past to deny that the Merit Protection Commissioner, and through him or her the Commonwealth, has any legal liability to persons arising out of an inquiry by the Merit Protection and Review Agency (MPRA).

As finalisation of matters under the provisions of the Merit Protection Act continued beyond the repeal date of the Merit Protection Act, in accordance with transitional regulations, the Australian Government Solicitor, has suggested that it may be prudent to make a regulation under paragraph 14(3)(f) of the Act to cover any staff undertaking this work.

Schedule 1        Amendments of Acts

This schedule provides details of the consequential amendments to Acts being made under subsection 14(5) of the Act which are to commence from 5 December 1999.

Part 1        Amendment of Administrative Decisions (Judicial Review) Act 1977

This amendment to paragraph (r) of Schedule 2 of the Administrative Decisions (Judicial Review) Act 1977(AD(JR) Act) is a consequential amendment that was not originally identified as part of Schedule 1 of the Act.

The amendment updates paragraph (r) of Schedule 2 of the AD(JR) Act to reflect the current terminology and provisions contained in the PS Act 1999 and Public Service Regulations 1999 in regard to those APS employment decisions which are to be exempt from section 13 of the AD(JR) Act (Person entitled to apply for review of decision may obtain reasons for decision).

Part 2       Amendments of Australian Capital Territory Government Service (Consequential Provisions) Act 1994

The amendment omits the reference to "the APS General Employment Conditions Award 1995" ('the GECA Award') contained in subsection 25(5) and subsection 25(6) of the above Act and substitutes a reference to "the APS Award 1998" as the GECA Award was renamed "the APS Award 1998" in September 1998.

The incorrect reference was inserted into the Australian Capital Territory Government Service (Consequential Provisions) Act 1994 by items 136 and 137 of Schedule 1 of the Act.

Part 3        Amendment of Commonwealth Authorities and Companies Act 1997

The amendment fixes an error that occurred in item 339 of Schedule 1 of the Act relating to proposed amendments to the Corporate Law Economic Reform Program Act 1999 ('CLERP Act'). The CLERP Act was amending sections of the Commonwealth Authorities and Companies Act 1997 (CAC Act).

As the reference to the CLERP Act in item 339 of Schedule 1 of the Act had the year listed as "1998" rather than "1999" the proposed amendments to the CLERP Act were ineffective and as such the subsequent amendments to the CAC Act did not commence.

This amendment to subsection 23 (2) of the CAC Act is a standard consequently amendment reflecting the employment terminology contained in the PS Act 1999 (i.e. omits "an officer or employee within the meaning of the Public Service Act 1922", inserts "a person appointed or engaged under the Public Service Act 1997).

Part 4        Amendment of Commonwealth Electoral Act 1918

Item 1 - This amendment to paragraph 60(4)(b) of the above Act is a consequential amendment and should have been included as part of the amendments to the above Act contained in Schedule 1 of the Act.

This amendment to the above Act reflects the new employment terminology contained in the PS Act 1999 (i.e. former references to "officer employed under the Public Service Act 1922" have been replaced by "person appointed or engaged under the Public Service Act 1999").

Item 2 - This amendment to paragraph 273A (7)(a) of the above Act is a consequential amendment and should have been included as part of the amendments to the above Act contained in Schedule 1 of the Act.

This amendment to the above Act reflects the new employment terminology contained in the PS Act 1999 (i.e. former references to "officer employed under the Public Service Act 1922" have been replaced by "person appointed or engaged under the Public Service Act 1999").

Part 5        Amendment of Director of Public Prosecutions Act 1983

This amendment to paragraph 31(1A)(b) of the above Act correct omissions that occurred in item 393 of Schedule 1 of the Act that amended this paragraph.

The amendment includes the additional word "is" at the start of the paragraph and "; and" at the end of the paragraph.

Part 7        Amendment of Members of Parliament (Staff) Act 1984

Item 1 - This amendment to section 3 (Interpretation) omits the definition of "officer" as the definition is superfluous. All references to "officer" in the Members of Parliament (Staff) Act 1984 (MOP(S) Act) were removed by other consequential amendments to the MOP(S) Act contained in Schedule 1 of the Act.

Item 2 - This amendment to section 3 (Interpretation) omits the definition of "Public Service Act" as the definition is superfluous. All references to "Public Service Act" in the MOP(S) Act were removed by other consequential amendments to the MOP(S) Act contained in Schedule 1 of the Act.

Item 3 - This amendment to subsection 14(1) omits the words "are the same as" as item 596 of Schedule 1 of the Act misdescribed the amendment as omitting all words after "are the same as" whereas these words should have also been omitted.

Item 4 - This amendment to subsection 21 (1) omits the words "are the same as" as item 601 of Schedule 1 of the Act misdescribed the amendment as omitting all words after "are the same as" whereas these words should have also been omitted.

Part 8        Amendment of Remuneration Tribunal Act 1973

Item 1 - This amendment to paragraph 4(4)(b) of the above Act is a consequential amendment and should have been included in Schedule 1 of the Act.

This amendment to the above Act reflects the new employment terminology contained in the PS Act 1999 (i.e. former references to "officer employed under the Public Service Act 1922" have been replaced by "person appointed or engaged under the Public Service Act 1997).

Item 2 - This amendment to subsection 8(4) of the above Act is a consequential amendment and should have been included in Schedule 1 of the Act.

This amendment substitutes a new subsection that removes the previous reference to the term of "office of Secretary" and the reference to the old Act.

Part 9        Amendment of Safety, Rehabilitation and Compensation Act 1988

This amendment is just re-locating the existing amendment of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) contained in item 1 of Schedule 1 of the Public Employment (Consequential and Transitional) Regulations 1999 to a new location as item 1 of Part 9 of Schedule 1. No changes have been made to the amendments to the SRC Act.

Part 10 Amendment of Superannuation Act 1976

This amendment to paragraph 14A(1)(a) of the above Act corrects an omission that occurred in item 848 in Schedule 1 of the Act that amended this paragraph.

The amendment includes the additional words "of Part W' in paragraph 14A(1)(a).

Schedule 2        Amendments taken to have commenced on 23 December 1999

Item 1 inserts a new item (f) after paragraph 6.1 (e) of the Regulations to coincide with the commencement of the Federal Magistrates Act 1999 from 23 December 1999 and the requirement for that Act to have a number of consequential amendments completed by the Regulations outlined in Part 6 of Schedule 1.

Item 2 inserts a new Part 6 into Schedule 1 to cover the consequential amendments to the Federal Magistrates Act 1999 (FM Act).

Various consequential amendments to the FM Act were originally listed in Schedule 1 of the Act; however, the Federal Magistrates Bill was amended after passage of the Act which meant the FM Act sections listed in items 472-478 of Schedule 1 of the Act did not match the FM Act as passed. As such the amendments to the FM Act as outlined in Schedule 1 could not commence.

Items 1-7 of Part 6 are the same consequential amendments to the FM Act as originally listed in Schedule 1 of the Act. The consequential amendments are all associated with changes in the staffing arrangements under the PS Act 1999 in relation to a statutory agency.

Part 6, Item 1 This amendment to subsection 97(1) changes the APS staffing provisions for the Federal Magistrates Court. The staffing powers remain vested in the Chief Executive Officer.

Part 6, Item 2 This amendment to section 100 amends the "made available" provisions covering arrangements enabling an Agency Head to arrange with other bodies to "make available" their staff to work in the Agency. The amendment reflects the new terminology in relation to "Agency Head" in the PS Act 1999 and is a standard consequential amendment in relation to "made available" provisions now contained in other Acts.

Part 6, Item 3 This amendment to section 10 1 is a standard consequential amendment reflecting the new employment terminology contained in the PS Act 1999 (i.e. omit "appointed or employed under the Public Service Act 1922", insert "engaged under the Public Service Act 1999").

Part 6, Item 4 This amendment to subsection 104(1) updates the reference from the old Act to the PS Act 1999.

Part 6, Item 5 This amendment to subsection 106(1) is a standard consequential amendment reflecting the new employment terminology contained in the PS Act 1999 (i.e. omit "appointed or employed under the Public Service Act 1922", insert "engaged under the Public Service Act 1999").

Part 6, Item 6 This amendment to subsection 109(1) is a standard consequential amendment reflecting the new employment terminology contained in the PS Act 1999 (i.e. omit "appointed or employed under the Public Service Act 1922", insert "engaged under the Public Service Act 1999").

Part 6, Item 7 This amendment to subsection 112(~) is a standard consequential amendment reflecting the new employment terminology contained in the PS Act 1999 (i.e. omit "appointed or employed under the Public Service Act 1922", insert "engaged under the Public Service Act 1999").

Schedule 3        Amendments taken to have commenced on 13 March 2000

Item 1 of the Regulations inserts an amendment into Schedule 1, Part 3, after item 1 by inserting a new item 2 that will amend subsection 27A(2) of the Commonwealth Authorities and Companies Act 1997 (CAC Act) from 13 March 2000.

This amendment to subsection 27A(2) of the CAC Act is a standard consequential amendment reflecting the employment terminology contained in the PS Act 1999 (i.e. omit "an officer or employee within the meaning of the Public Service Act 1922", insert "a person appointed or engaged under the Public Service Act 1997).