Circular 2013/05: Public Service Amendment Regulation 2013 (No. 2)

Last updated: 18 Oct 2013

This page is: archived

The purpose of this circular is to inform Australian Public Service (APS) agencies of additional minor changes to the Public Service Regulations 1999 to come into effect on 1 July 2013.

Public Service Amendment Regulation 2013 (No. 2) (the Amendment Regulation) was made on 13 June 2013. The Amendment Regulation provides transitional regulations to assist with implementing the changes to the Merit Protection Commissioner’s review and recruitment functions and clarifies certain aspects of the Australian Public Service Commissioner’s new function in regard to investigating Code of Conduct breaches by statutory office holders.

The Amendment Regulation will be available on the Comlaw website. The relevant provisions are attached.

Reviews of Actions, Promotion Reviews and Independent Selection Advisory Committees—Transitional Provisions

The changes made to the Public Service Regulations in March 2013 (the March Regulations) did not include transitional provisions dealing with the review and recruitment functions of the Merit Protection Commissioner.

In order to avoid any doubt, it was decided to formalise the advice on transitional arrangements included in Commission Advices No 10—Independent Selection Advisory Committees (ISACs) and 13—Review of Actions.

The Amending Regulation inserts transitional provisions into the March Regulations.

Australian Public Service Commissioner’s functions

Minor amendments have been made to certain provisions of the Regulations in respect of the Australian Public Service Commissioner’s (Commissioner’s) functions. Amendments to the Act were made to protect certain sensitive information disclosed by, and to, the Commissioner, and to provide for the Commissioner’s immunity from civil proceedings in relation to several of his functions. The Act allows the Regulations to prescribe additional powers and functions to which the protection of information and immunity provisions apply.

The need to make provisions for the protection of information and immunity from suit was overlooked in relation to the Commissioner’s new function under regulation 6.1A of inquiring into alleged breaches of the Code of Conduct by certain statutory office holders. The proposed amendment rectifies this. 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 protection.

These amendments do not alter Commission Advice 15—Statutory officer holders and the APS Code of Conduct.

Commencement of amendments

The changes to the Public Service Regulations 1999 made by Public Service Amendment Regulation 2013 (No. 1 and No. 2) will come into effect on 1 July 2013. In the meantime, the current provisions of the Regulations continue to apply.

Action required now

Agencies may care to check their policies, instructions and guidance to ensure that they have correctly interpreted the transitional provisions for changes to the review function and the operation of ISACs.

Further advice

Please contact the Public Service Amendment Act team on 02 6202 3737 if this circular requires clarification.

 

Karin Fisher
Group Manager
Ethics Group

17 June 2013

Attachment: Amendments to Public Service Amendment Regulation 2013 (No. 1)

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

Repeal the inserted regulation, substitute:

6.6 Protected information

For paragraph (c) of the definition of protected information in subsection 72A(1) of the Act, regulations 6.1 and 6.1A are prescribed.

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

Repeal the inserted regulation, substitute:

6.7 Compellability of entrusted persons to give evidence

For paragraph 72A(7)(e) of the Act, regulations 6.1 and 6.1A are prescribed.

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

Omit “regulation 6.1 is prescribed, substitute “regulations 6.1 and 6.1A are prescribed”.

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

Repeal the inserted regulation, substitute:

6.9 Immunity from civil proceedings

For paragraph 78A(1)(h) of the Act, regulations 6.1 and 6.1A are prescribed.

5 Item 73 of Schedule 1 (after the definition of commencement day in inserted regulation 10.1 of the Public Service Regulations 1999)

Insert:

Note: The date is 1 July 2013.

6 Item 73 of Schedule 1 (at the end of inserted Part 10 of the Public Service Regulations 1999)

Add:

10.8 Review of matters relating to Code of Conduct as in force before commencement day

If item 22, 23 or 24 of Schedule 4 to the Public Service Amendment Act 2013 has applied in relation to conduct by an Agency Head relating to the Code of Conduct, the Merit Protection Commissioner must:

  1. review a determination made by the Agency Head that the APS employee in the Agency has breached the Code of Conduct under the same requirements as the relevant item applied in relation to the Agency Head; and
  2. review the sanction (if any) imposed on the APS employee under the same requirements as the relevant item applied in relation to the Agency Head.

    Note: Item 22 of Schedule 4 to the Public Service Amendment Act 2013 relates to an investigation, begun before the commencement time, to determine whether an APS employee in the Agency had breached the Code of Conduct. Item 23 relates to a finding, before the commencement time, that an APS employee in the Agency had breached the Code of Conduct, with no sanction having been imposed. Item 24 relates to an allegation, before the commencement time, that an APS employee in an Agency had breached the Code of Conduct.

10.9 Review of action lodged before commencement day

  1. Subregulation (2) applies if:
    1. before the commencement day, an APS employee applied for review of APS action; and
    2. the application was not made in accordance with subregulation 5.24(2); and
    3. the review had not been completed in accordance with that Division before the commencement day.

    Note: The application may have been made to an Agency Head or the Merit Protection Commissioner. Also, the application may have been referred to the Merit Protection Commissioner by the Agency Head.

  2. The old Public Service Regulations continue to apply, on and after the commencement day, in relation to the review.
  3. Subregulation (4) applies if:
    1. before the commencement day, an APS employee applied for review of APS action; and
    2. the application was not made in accordance with subregulation 5.24(2); and
    3. on or after the commencement day, the Merit Protection Commissioner proposes to review the reviewable action.
  4. The old Public Service Regulations continue to apply, on and after the commencement day, in relation to the review by the Merit Protection Commissioner.

10.10 Conduct of ISAC and recommendation by ISAC

  1. Subregulation (2) applies if:
    1. before the commencement day, an ISAC was established; and
    2. immediately before the commencement day:
      1. the ISAC was still in existence and had not made a recommendation; or
      2. a recommendation by the ISAC, made within 12 months after the date of notification of the employment opportunity, was in force.
  2. The new Public Service Regulations apply, on and after the commencement day, in relation to the ISAC and the recommendation.
  3. However, if:
    1. the employment opportunity was advertised or notified on the basis that the old Public Service Regulations would apply on and after the commencement day; or
    2. official information provided in relation to the advertisement or notification of the employment opportunity stated that the old Public Service Regulations would apply on and after the commencement day;

    the old Public Service Regulations continue to apply, on and after the commencement day, in relation to the ISAC and the recommendation.

    Example: Official information provided in relation to the advertisement or notification of the employment opportunity would include a statement in an application pack or information provided by a contact person identified in the advertisement or notification.

10.11 Review of promotion notified before commencement day

  1. Subregulation (2) applies if before the commencement day, a promotion was notified in accordance with the old Public Service Regulations.
  2. The old Public Service Regulations continue to apply, on and after the commencement day, in relation to:
    1. the promotion; and
    2. any entitlement to have access to a statement given as part of a review of the promotion.