EXPLANATORY STATEMENT
Statutory Rules 2002 No. 87
Issued by authority of the Prime Minister
Public Employment (Consequential and Transitional) Amendment Act 1999
Public Employment (Consequential and Transitional) Amendment Regulations 2002 (No. 1)
Subsection 14(1) of the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the PECTA Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the PECTA Act.
The purpose of the Regulations is to amend the Public Employment (Consequential and Transitional) Regulations 1999 (the principal Regulations) to ensure that former APS officers who had been compulsorily transferred under section 81C of the Public Service Act 1922 (the old Act) to a non-APS Commonwealth authority are eligible to seek re-engagement in the APS in certain prescribed circumstances.
The omission of this class of persons inadvertently occurred in the drafting of the definitions of 'eligible public employment' and 'public authority' in the principal Regulations. The omission could adversely affect such persons' lights.
This was not the intention of the Government when it was considering what transitional arrangements would apply to such persons following the repeal of the old Act.
The Regulations would amend these definitions in the principal Regulations to remove any doubt about the eligibility of these persons to seek re-engagement to the APS in certain prescribed circumstances.
The Regulations apply retrospectively from 5 December 1999. The requirements of subsection 48(2) of the Acts Interpretation Act 1901 are not contravened, as no person will be disadvantaged by the Regulations, and no new liabilities will be imposed on any person, other than the Commonwealth.
Details of the Regulations are set out in the Attachment.
The Regulations would be taken to have commenced on 5 December 1999.
ATTACHMENT
Regulation 1 names the Regulations as the Public Employment (Consequential and Transitional) Amendment Regulations 2002 (No. 1).
Regulation 2 of the Regulations provides that the Regulations will be taken to have commenced on 5 December 1999.
Regulation 3 of the Regulations provides that the Public Employment (Consequential and Transitional) Regulations 1999 (principal Regulations) will be amended as set out in Schedule 1.
Schedule 1 Amendments
Item 1 Dictionary, definition of eligible public employment
The amendment substitutes a new definition of 'eligible public employment' in the Dictionary of the principal Regulations. The amended definition provides, effectively, for the addition of a reference to employment in an authority where employees transferred to that authority in accordance with the provisions of section 81C of the old Act where functions have been transferred to that authority from the APS.
Item 2 Dictionary, definition of public authority, paragraph (b)
The amendment is an editorial amendment to allow for the inclusion of an additional paragraph (c) in the definition of public authority as described in Item 3 below.
Item 3 Dictionary, definition of public authority, after paragraph (b)
The amendment provides for insertion of a new paragraph (c) in the definition of 'public authority', to include an authority to which employees transferred in accordance with the provisions of section 81C of the old Act, where functions have been transferred to that authority from the APS.
Background
Section 7 of the PECTA Act provides that a second-tier person is entitled to be engaged as an APS employee in accordance with the principal Regulations, within the time limits prescribed by the principal Regulations, and that the principal Regulations may prescribe exceptions to the entitlement to be so engaged.
The term second-tier person is defined under section 4 of the PECTA Act to include a person to whom Division 3 of Part IV of the Public Service Act 1922 (the old Act) applied immediately before the commencement of the Public Service Act 1999 (i.e. 5 December 1999).
Division 3 of Part IV of the old Act, known as the second tier mobility provisions, provided APS officers, who moved to employment with non-APS Commonwealth authorities, with rights to seek re-engagement in the APS in certain prescribed circumstances, including where the person's employment with the authority is being terminated or adversely affected by reason of a reduction in, or alteration to, the functions or activities of that authority.
APS officers compulsorily transferred to a non-APS Commonwealth authority, as a result of a transfer of APS functions to the authority under section 81C of the old Act, were covered by these mobility provisions on the date of the person's transfer to that authority.
On 5 December 1999 the old Act was repealed and both the Public Service Act 1999 (PS Act 1999) and the PECTA Act commenced. The PS Act 1999 does not contain any mobility provisions.
The PECTA Act and the principal Regulations deal with the transitional provisions arising from the repeal of the old Act and the enactment of the PS Act 1999.
All mobility fights under the old Act ceased from 5 December 1999. Former APS officers who were covered by the second tier mobility provisions moved to coverage under section 7 of PECTA Act (defined as a second-tier person) and Part 3 of the principal Regulations.
The terms are used throughout Regulations 3.9-3.18 of the principal Regulations to define whether a second-tier person is eligible to seek re-engagement to the APS, the time limits in which they are eligible, and the prescribed circumstances that apply to various second-tier persons.
The definitions of 'eligible public employment' and 'public authority' in the Dictionary to the principal Regulations in advertently excluded APS officers compulsorily transferred under section 81C of the old Act from eligibility to apply for re-engagement to the APS in any of the prescribed circumstances.
The Regulations will amend the definitions and therefore ensure these persons are covered by Part 3 of the principal Regulations.