Merit Protection (Australian Government Employees) Regulations
Statutory Rules 1985 No. 176 as amended
made under the
Merit Protection (Australian Government Employees) Act 1984
This compilation was prepared on 28 March 2001
taking into account amendments up to SR 1995 No. 247
Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra
Contents
Page
Part I Preliminary
1 Citation [see Note 1]
2 Commencement
3 Interpretation
Part II Promotion Appeal Committees
4 Membership of Promotion Appeal Committees
4A Notice of appeals against selection of officers for directions to act
4B Determination of appeals against selection of officers for directions to act
5 Inquiries by Promotion Appeal Committees
5A Statements to Promotion Appeal Committees
5B Provision of information
5C Procedure of Promotion Appeal Committees
6 Privileges of members of Promotion Appeal Committees
7 Appropriate organisation
Part III Re-appointment review committees and re-integration assessment committees
8 Appropriate organization for the purposes of paragraph 28 (1) (c) of the Act
9 Appropriate organisation for the purposes of paragraph 33 (c) of the Act
Part IV Disciplinary Appeal Committees
10 Interpretation of Part IV
11 Nomination by appropriate organisation
12 Procedure of Director on receipt of appeal or in relation to request for review
13 Procedure on receipt by a Chairman of appeal or request for review
14 Powers of Chairman of Disciplinary Appeal Committee
15 Evidence taken in remote locality
16 Hearing to be in public except in special circumstances
17 Witnesses
18 Offences by persons summoned to attend before Disciplinary Appeal Committees
19 Witnesses expenses
20 Representation of parties
21 Protection of members of Disciplinary Appeal Committees, witnesses etc
22 Notification of findings of Disciplinary Appeal Committee
23 Payment of costs
24 Costs of lapsed appeal
Part V Redeployment and Retirement Appeal Committees
25 Interpretation of Part V
Section 1 - Merit Protection (Australian Government Employees) Regulations - Merit Protection (Australian Government Employees) Regulations | Zoe
26 Nomination by appropriate organisation
27 Documents and statements relating to appeals
28 Non-disclosure of certain information
29 Appointment of person to hear evidence
30 Powers of Convenor
30A Offences by persons summoned to attend before Redeployment and Retirement Appeal Committees
31 Public and private hearings
32 Representation of parties
33 Consolidation of appeals
34 Protection of members of Committee, witness etc
35 Impartiality of Committee
36 Decision of Committee
Part VA Other committees
37 Appropriate organisation for the purposes of section 35A of the Act
Part VB Performance of functions on request
38 Appropriate organisation for the purposes of section 57A of the Act
Part VI Miscellaneous
50 Delegation
51 Delegation by Public Service Board or Secretary
Notes
Part I Preliminary
1 Citation [see Note 1]
These Regulations may be cited as the Merit Protection (Australian Government Employees) Regulations.
2 Commencement
These Regulations shall come into operation on 21 July 1985.
3 Interpretation
In these Regulations, unless the contrary intention appears:
Conciliation and Arbitration Act means the Conciliation and Arbitration Act 1904.
employee has the same meaning as in the Public Service Act 1922.
Public Service Act means the Public Service Act 1922.
the Secretary means the Secretary of the Department in connection with which, or in which is employed an officer or employee in connection with whom, the expression is used or is applicable.
the Act means the Merit Protection (Australian Government Employees) Act 1984.
Part II Promotion Appeal Committees
4 Membership of Promotion Appeal Committees
(1) An officer shall not act as a member of a Promotion Appeal Committee in an appeal in which that officer is the officer selected or the appellant.
(2) A person who makes, or takes part in making, a recommendation:
(a) to the Secretary in relation to the selection of an officer for promotion under section 50 of the Public Service Act; or
(b) to the Secretary in relation to a direction under subregulation 116A (2) of the Public Service Regulations to an officer to perform temporarily the whole, or a specified part, of the duties of a higher office;
shall not as a member of a Promotion Appeal Committee that is to determine an appeal against that selection or direction.
(3) An officer is on duty when acting as a member of a Promotion Appeal Committee.
4A Notice of appeals against selection of officers for directions to act
(1) Where:
(a) an officer is directed under subregulation 116A (2) of the Public Service Regulations to perform temporarily the whole, or a specified part, of the duties of an office in a Department; and
(b) the Agency receives an appeal under subregulation 116C (2) of the Public Service Regulations against the selection of that officer for that direction;
the Agency shall as soon as practicable give the Secretary of the Department affected by that appeal, or, where 2 Departments are affected, the Secretaries of both of those Departments, notice of that appeal.
(2) For the purposes of subregulation (1), a Department is affected by an appeal where the appeal is made by an officer of that Department or relates to an office in that Department.
4B Determination of appeals against selection of officers for directions to act
Where an appeal is made, or appeals are made, under subregulation 116C (2) of the Public Service Regulations against the selection of an officer for a direction, the Promotion Appeal Committee that determines the appeal or appeals shall, on the completion of its inquiry in relation to the appeal or appeals:
(a) if there is only one appellant — allow or disallow the appeal; or
(b) if there are 2 or more appellants — allow the appeal of one only of those appellants and disallow the other appeal or appeals, or disallow all appeals.
5 Inquiries by Promotion Appeal Committees
A Promotion Appeal Committee may, by instrument signed by the Convenor of the Committee:
(a) appoint one or more persons to assist the Committee in making its inquiries under subsection 50D (1) of the Public Service Act; and
(b) give to a person so appointed directions in relation to the kind of assistance that the person is to give to the Committee.
5A Statements to Promotion Appeal Committees
(1) For the purposes of this regulation and regulations 5B and 5C, a reference to a party is a reference to the officer promoted or selected, or an appellant, in an appeal.
(2) Each party must provide to the Agency a statement in writing of the party’s case with respect to the appeal.
(3) Subject to subregulations (4) and (5), the time for a party to provide a statement is:
(a) 7 days after the party has instituted, or been notified of, the appeal; or
(b) if the Agency has notified the party in writing of a longer period of time for providing the statement — the time so notified.
(4) If:
(a) before the expiry of the period referred to in subregulation (3), or of that period as extended in accordance with this subregulation, a party applies to the Agency for an extension of time, or a further extension of time, to provide a statement to the Agency; and
(b) the application sets out the party’s reasons for needing an extension of time, or further extension of time; and
(c) the Agency is satisfied that the party reasonably needs an extension of time, or a further extension of time;
the Agency may, by notification in writing to the party, grant an extension of time, or a further extension of time, to the party.
(5) If a party fails to submit a statement in the time referred to in subregulation (3) or (4), the Promotion Appeal Committee may determine the case without the statement.
5B Provision of information
The Agency may from time to time, by notice in writing, request the Secretary to the Department that made a promotion or selection to provide in writing on or before a specified date information with respect to a party, and the Secretary must as far as possible comply with the notice.
5C Procedure of Promotion Appeal Committees
(1) Subject to subregulation (2), a Promotion Appeal Committee must not determine an appeal if a party has not provided a statement or a request under regulation 5B has not been substantially complied with.
(2) A Promotion Appeal Committee may determine an appeal notwithstanding:
(a) the failure of a party to provide a statement by the expiration of the time available to do so, if the Committee has taken the steps mentioned in subregulation 5A (4); or
(b) the absence of substantial compliance with a request under regulation 5B, if the Committee is of the opinion:
(i) that the absence of compliance is not likely significantly to affect the Committee’s determination of the appeal; or
(ii) that it is not practicable to obtain any, or any further, information under the request.
(3) A Promotion Appeal Committee may from time to time defer or adjourn its consideration of an appeal if the Committee considers it reasonable and proper to do so.
6 Privileges of members of Promotion Appeal Committees
An action or proceeding, civil or criminal, does not lie against a person who is or was a member of a Promotion Appeal Committee, or appointed under regulation 5, for or in respect of any act or thing done in good faith as a member or as a person so appointed, as the case requires.
7 Appropriate organisation
(1) Subject to subregulation (2), in relation to the selection of an officer for promotion to a higher office or to perform temporarily the duties of a higher office, the appropriate organisation for the purposes of paragraph 10 (1) (c) of the Act is an organisation that is registered under the Conciliation and Arbitration Act the rules of which provide that an officer who occupies that office is eligible for membership of that organisation.
(2) Where, in relation to the selection of an officer for promotion to a higher office or to perform temporarily the duties of a higher office, the rules of more than one organisation provide that an officer who occupies that office is eligible for membership, the appropriate organisation for the purposes of paragraph 10 (1) (c) of the Act is the organisation that is registered under the Conciliation and Arbitration Act the membership of which includes the larger or largest number of officers occupying offices of the class for which that officer has been so selected.
Part III Re-appointment review committees and re-integration assessment committees
8 Appropriate organization for the purposes of paragraph 28 (1) (c) of the Act
(1) For the purposes of paragraph 28 (1) (c) of the Act, but subject to subregulation (2), the appropriate organization to nominate a person is an organization that is registered under the Conciliation and Arbitration Act and:
(a) where an application has been made by a person under section 87N of the Public Service Act, is an organization that the applicant would be eligible to join if the applicant were engaged in the kind of employment in which the applicant seeks to be engaged; or
(b) where an application has been made by a person under section 87P of the Public Service Act, is an organization that the Agency considers appropriate, having regard to the kind of employment in which the applicant is, or might on re-appointment to the Service become, engaged.
(2) Where an applicant referred to in paragraph (1) (a) is eligible for membership of more than one organization referred to in that paragraph, the appropriate organization is the organization having among its members the larger or largest number of officers engaged in the kind of employment in which the applicant seeks to be engaged.
(3) Where an applicant referred to in paragraph (1) (b) is eligible for membership of more than one organization referred to in that paragraph, the appropriate organization is the organization having among its members the larger or largest number of officers engaged in the kind of employment in which the applicant is, or might on re-appointment to the Service become, engaged.
9 Appropriate organisation for the purposes of paragraph 33 (c) of the Act
(1) Subject to subregulation (2), for the purposes of paragraph 33 (c) of the Act, the appropriate organization to nominate a person to be a member of a Re-integration Assessment Committee constituted for the purpose of an inquiry into an application made by an officer employed under Part III or IV of the Members of Parliament (Staff) Act 1984 or Part II or III of the Legislative Assembly (Members’ Staff) Act 1989 of the Australian Capital Territory is an organization that is registered under the Conciliation and Arbitration Act and that the Agency considers appropriate, having regard to the kind of employment in which the applicant is likely on re-integration to the Service to become engaged.
(2) Where the officer referred to in subregulation (1) is eligible for membership of more than one organization referred to in that subregulation, the appropriate organization is the organization having among its members the larger or largest number of officers engaged in the kind of employment in which the applicant is likely on re-integration to the Service to become engaged.
Part IV Disciplinary Appeal Committees
10 Interpretation of Part IV
(2) In this Part, unless the contrary intention appears:
Disciplinary Appeal Committee means a Disciplinary Appeal Committee established in accordance with Subdivision C of Division 2 of Part II of the Act.
proceeding, in relation to a Disciplinary Appeal Committee, means the hearing of an appeal under section 63D, 63F or 63P of the Public Service Act or the conduct of a review under section 63G of that Act, or any part of such an inquiry, hearing or review.
review means a review of a finding or of action taken referred to in section 63G of the Public Service Act, as the case requires.
salary has the same meaning as in Division 6 of Part III of the Public Service Act.
Secretary, in relation to a person who:
(a) has been dismissed from the Service under section 62 or 63 of the Public Service Act;
(b) is deemed, under section 66A of the Public Service Act, to have retired from the Service; or
(c) is an unattached officer within the meaning of Subdivision D of Division 6 of Part III of the Public Service Act;
means:
(d) the Secretary of the Department in which the person last held office or, where that person did not hold office, the Department in which the person last performed duties; or
(e) where that Department has been abolished — a Secretary selected by the Board having regard to the duties last performed in the Service by that person;
as the case requires.
11 Nomination by appropriate organisation
(1) Subject to subregulation (2), for the purposes of paragraph 17 (1) (c) of the Act, the appropriate organisation in relation to a person who has appealed, or made a request, under a section of the Public Service Act referred to in subsection 17 (1) of the Act (in this regulation referred to as affected person) is the organisation:
(a) that is registered under the Conciliation and Arbitration Act; and
(b) under the rules of which a person whose work is comparable to that of the affected person is eligible for membership.
(2) For the purposes of paragraph 17 (1) (c) of the Act, in relation to a person whose work is comparable to that of an affected person who is eligible for membership under the rules of more than one organisation registered under the Conciliation and Arbitration Act, the appropriate organisation is whichever of those organisations has as members the greatest number of persons (whether that number comprises officers, employees or partly officers and partly employees) whose work is so comparable.
(3) For the purposes of subregulations (1) and (2), where:
(a) the classification of an officer is the same or corresponds to; or
(b) the capacity in which an employee is employed in the Service corresponds to or is the same as;
the classification held or last held by the affected person, or the capacity in which the affected person is or was employed in the Service, as the case may be, the work of that officer or employee is comparable to the work of the affected person.
(4) In respect of an appeal by a person under subsection 63F (7) of the Public Service Act against a recommendation refusing an application by that person under subsection 63F (4) of the Public Service Act, the reference in subregulation (3) to the classification held or last held by the affected person is a reference to the classification of the office that was the original office of that person within the meaning of subsection 63F (12) of the Public Service Act.
12 Procedure of Director on receipt of appeal or in relation to request for review
(1) Where the Director receives an appeal in accordance with regulation 141 of the Public Service Regulations the Director shall, as soon as practicable:
(a) obtain from the appropriate organisation the name and address of the person nominated by that organisation in respect of that review for the purposes of paragraph 17 (1) (c) of the Act;
(b) notify the Secretary of the person who appealed that the appeal has been made and furnish that Secretary with a copy of the appeal;
(c) obtain from the Secretary referred to in paragraph (b) the name and address of the officer nominated by the Secretary for the purposes of paragraph 17 (1) (b) of the Act; and
(d) after the names and addresses of the officer nominated for the purposes of paragraph 17 (1) (b) of the Act and the person nominated for the purposes of paragraph 17 (1) (c) of the Act have been obtained by or notified to the Director — refer the appeal together with those names and addresses to a Convenor of a Disciplinary Appeal Committee.
(2) Where the Director receives a request for a review, the Director shall:
(a) obtain from the appropriate organisation the name and address of the person nominated by that organisation in respect of that review for the purposes of paragraph 17 (1) (c) of the Act;
(b) notify the Secretary of the person requesting the review that the request has been made; and
(c) obtain from the Secretary referred to in paragraph (b) the name and address of the officer nominated by the Secretary for the purposes of paragraph 17 (1) (b) of the Act.
(3) Where the Director requests that a Secretary referred to in paragraph (1) (b) or (2) (b) provide the Director with a name and address of an officer referred to in paragraph (1) (c) or (2) (c) that Secretary shall provide the name and address of that officer to the Director forthwith.
13 Procedure on receipt by a Chairman of appeal or request for review
As soon as practicable after a Convenor of a Disciplinary Appeal Committee receives:
(a) an appeal referred to that Convenor in accordance with paragraph 12 (1) (d); or
(b) a request for a review referred to the Disciplinary Appeal Committee under subsection 63G (3) of the Public Service Act;
the Convenor shall, after taking into account:
(c) the time it may take to notify the parties to the proceeding; and
(d) the time it may take for the appellant or the person seeking the review to travel to attend the hearing and to prepare his or her case;
proceed to:
(e) fix the date on which and the time and place at which the Disciplinary Appeal Committee will hear the proceeding; and
(f) notify the parties to the proceeding and the officer and the person nominated for the purposes of paragraph 17 (1) (b) or (c) of the Act of that date, time and place.
14 Powers of Chairman of Disciplinary Appeal Committee
Where, under subsection 19 (1) of the Act, the remaining members of a Disciplinary Appeal Committee are to conduct a proceeding in the absence of the Convenor of that Committee the references in these Regulations to Convenor shall be read in relation to that proceeding as references to those members acting together.
15 Evidence taken in remote locality
(1) Where, in relation to an appeal under section 63D, 63F or 63P of the Public Service Act, it appears to a Disciplinary Appeal Committee that it is undesirable, by reason of the appellant being stationed outside Australia or in a remote locality in Australia, or by reason of expense, inconvenience or delay, to require the appellant or any particular witness to attend to give evidence before the Disciplinary Appeal Committee hearing the appeal, that Committee may, by order in writing under the hand of its Convenor, appoint some fit and proper person to take the evidence of the appellant or witness.
(2) A person appointed under subregulation (1) shall take any evidence under that subregulation on oath or affirmation and, for the purpose of so doing, shall have all the powers of the Disciplinary Appeal Committee that appointed that person.
(3) Each party to an appeal under section 63D, 63F or 63P of the Public Service Act who is entitled to be represented before the Disciplinary Appeal Committee hearing the appeal may be represented before any person taking evidence in connection with that appeal in pursuance of this regulation by a legal practitioner or some other person and the legal practitioner or other person may examine witnesses and address the person taking that evidence on behalf of the party whom the legal practitioner or other person represents.
(4) Evidence taken under this regulation shall be certified under the hand of the person taking it, forwarded to the Disciplinary Appeal Committee that appointed that person and to the parties to the appeal and considered by that Committee as evidence in connection with the appeal in relation to which it was so taken.
16 Hearing to be in public except in special circumstances
(1) Subject to this regulation, a proceeding before a Disciplinary Appeal Committee shall be in public.
(2) Where a Disciplinary Appeal Committee is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, that Committee may, by order:
(a) direct that a proceeding take place in private and give directions as to the persons who may be present at that proceeding;
(b) give directions prohibiting or restricting the publication of evidence given before that Committee, whether in public or in private, or of matters contained in documents lodged with, or received in evidence by, that Committee; or
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before that Committee, or of the contents of a document lodged with that Committee, in relation to the proceeding.
(3) In considering:
(a) whether the hearing of a proceeding should be held in private; or
(b) whether publication, or disclosure to some or all of the parties, of evidence given before a Disciplinary Appeal Committee, or of a matter contained in a document lodged with that Committee or received in evidence by it, should be prohibited or restricted;
that Committee shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before it should be held in public and that evidence given before it and the contents of documents lodged with it or received in evidence by it should be made available to the public and to all the parties, but shall pay due regard to any reasons given to it why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.
17 Witnesses
(1) For the purposes of a proceeding before a Disciplinary Appeal Committee, the Convenor of that Committee may, by writing under that Convenor’s hand, summon a person to attend before that Committee to give evidence and to produce such documents (if any) as are referred to in the summons.
(2) Where a Disciplinary Appeal Committee appoints a person under subregulation 15 (1) to take the evidence of an appellant or witness, the Convenor of that Committee may, by writing under the Convenor’s hand, summon that appellant or witness to appear before the person so appointed to give evidence and to produce such documents (if any) as are referred to in the summons.
18 Offences by persons summoned to attend before Disciplinary Appeal Committees
(1) Subject to subregulations (2) and (3), a person summoned to attend a proceeding before a Disciplinary Appeal Committee must not, without reasonable excuse:
(a) fail to attend, or to produce documents, in accordance with the summons; or
(b) refuse or fail to be sworn, or to make an affirmation, at the proceeding; or
(c) at the proceeding refuse or fail to answer a question relevant to the proceeding that the Convenor of the Committee requires the person to answer.
Penalty: 5 penalty units.
Note As at the commencement of this subregulation, the value of a penalty unit was $100: Crimes Act 1914, subsection 4AA (1).
(2) A person (other than an officer or employee) has a reasonable excuse for failing to attend, or to produce documents, in accordance with the summons if the person has not been given a reasonable sum of money for the reasonable expenses that are likely to be incurred by the person:
(a) in travelling:
(i) from the person’s place of residence to the proceeding; and
(ii) from the proceeding to the person’s place of residence; or
(b) if it is reasonable that the person should be provided with accommodation — for accommodation near the proceeding; or
(c) in producing the documents.
(3) A person referred to in subregulation (1) is not required to answer a question if the answer to that question would tend to incriminate the person.
19 Witnesses expenses
(1) A person, other than a person referred to in subregulation (4), who is summoned to attend, and attends, for the purpose of giving evidence in an appeal to a Disciplinary Appeal Committee and who applies to the Convenor of that Committee for the payment of costs reasonably incurred by that person in relation to that attendance, is entitled to the payment by the Commonwealth to that person of those costs assessed by that Convenor in accordance with the scale applicable to witnesses expenses payable under the Public Works Committee Regulations.
(2) An assessment made under subregulation (1) shall be in writing and shall be furnished to the person in respect of whom it is made.
(3) An amount payable to a person in accordance with subregulation (1) is payable to that person, upon tender of a copy of the assessment referred to in subregulation (1), by the Department of the Secretary of the appellant or person charged, as the case requires.
(4) This regulation does not apply to:
(a) officers or employees summoned to give evidence; or
(b) witnesses who are summoned at the request of an appellant in respect of whom an order has been made under subsection 17 (4) of the Act.
20 Representation of parties
(1) A person who is a party to a proceeding before a Disciplinary Appeal Committee is entitled to examine witnesses and address that Committee at that proceeding.
(2) A person referred to in subregulation (1) may be represented at a proceeding referred to in that subregulation by a legal practitioner or some other person and the legal practitioner or other person may examine witnesses and address the Committee referred to in that subregulation on behalf of the person referred to in that subregulation.
21 Protection of members of Disciplinary Appeal Committees, witnesses etc
(1) An action or proceeding, civil or criminal, does not lie against a person who is a Convenor or member of a Disciplinary Appeal Committee for or in respect of any act or thing done in good faith by the person in his or her capacity as such a Convenor or member.
(2) A legal practitioner representing a party to a proceeding before a Disciplinary Appeal Committee has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
(3) Subject to this Part:
(a) a person summoned to attend or appearing before a Disciplinary Appeal Committee to give evidence at a proceeding; or
(b) a person, other than a legal practitioner, representing a party at the hearing of a proceeding before that Committee;
has the same protection, and is, in addition to the penalties provided by this Part, subject to the same liabilities, in any civil or criminal proceedings, as a witness in proceedings in the High Court.
22 Notification of findings of Disciplinary Appeal Committee
Where a Disciplinary Appeal Committee makes a decision in respect of an appeal under section 63D, 63F or 63P of the Public Service Act or a request for a review under section 63G of that Act, the Convenor of that Committee shall, as soon as practicable after that Committee has made its decision, notify:
(a) the appellant or person requesting the review;
(b) the Secretary of that appellant or person; and
(c) the Public Service Board;
in writing of the decision and of the reasons for that decision.
23 Payment of costs
(1) In this regulation, a reference to a successful appeal includes a reference to an appeal as a result of the determination of which the severity of action taken or to be taken under section 62 or 63 of the Public Service Act in respect of an appellant is reduced.
(2) Where an appeal to a Disciplinary Appeal Committee is successful the Disciplinary Appeal Committee that heard the appeal shall consider and determine whether the Department of the Secretary referred to in paragraph 17 (1) (b) of the Act in relation to the appeal should pay the whole or part of the costs incurred in that appeal by that appellant.
(3) Where a Disciplinary Appeal Committee determines under subregulation (2) that a Department should pay the whole or part of the costs incurred by an appellant in an appeal, that Department shall pay to that appellant the amount that the Disciplinary Appeal Committee has so determined.
24 Costs of lapsed appeal
(1) Except where an order under subsection 17 (4) of the Act has been made, where an appeal to a Disciplinary Appeal Committee under section 63D, 63F or 63P of the Public Service Act lapses because of the death, mental or physical incapacity or compulsory retirement of the appellant, an application for payment of the costs reasonably incurred by the appellant in the appeal may be made to the Director by that appellant or by a person administering that appellant’s affairs or estate under a law of the Commonwealth or of a State or of a Territory, or by a member of that appellant’s family, as the case requires.
(2) Where, in the case of a lapsed appeal referred to in subregulation (1), the Director receives an application under subregulation (1), the Director shall refer the application to the Department of the Secretary referred to in paragraph 17 (1) (b) of the Act in relation to that appeal and that Department shall pay to the applicant the costs to which the application relates.
(3) In this regulation, a reference to a member of the family of a person shall be read as including a reference to a parent, spouse, de facto spouse or child of that person, or the spouse or de facto spouse of a child of that person.
Part V Redeployment and Retirement Appeal Committees
25 Interpretation of Part V
(1) In this Part, unless the contrary intention appears:
appellant means:
(a) an officer or employee;
(b) a person employed by an Authority on a permanent basis other than a person whose employment is on probation and whose employment has not been confirmed;
(c) a person employed by an Authority on a temporary basis whose period of continuous service exceeds one year but does not include a person engaged for a specific period or for the completion of a specific task;
who has appealed under a Division of the Public Service Act referred to in subsection 23 (1) of the Act.
Authority means an authority or body that, immediately before the commencement of section 129 of the Streamlining Act, was a prescribed Commonwealth authority within the meaning of the Commonwealth Employees (Redeployment and Retirement) Act 1979.
Committee means a Redeployment and Retirement Appeal Committee established in accordance with Subdivision D of Division 2 of Part II of the Act.
Streamlining Act means the Public Service Legislation (Streamlining) Act 1986.
(2) In this Part, unless the contrary intention appears, a reference to an appeal is a reference to:
(a) an appeal against the giving of a notice by the Public Service Commissioner under subsection 76L (3) or 76W (3) of the Public Service Act;
(b) an appeal against the giving of a notice by a Secretary under subsection 76W (1) of the Public Service Act;
(c) an appeal against the giving of a notice by an Authority under section 76W of the Public Service Act.
(3) In this Part, unless the contrary intention appears, a reference to the appropriate authority is:
(a) in relation to an appeal against the giving of a notice by a Secretary — a reference to that Secretary;
(b) in relation to an appeal against the giving of a notice by an Authority — a reference to that Authority; and
(c) in any other case — the Public Service Commissioner.
(4) In this Part, unless the contrary intention appears, a reference to a provision of Division 8C of Part III of the Public Service Act in relation to an Authority, or to the staff of an Authority, is a reference to that provision in its application in relation to the staff of that Authority or, where the Authority has made other provision in accordance with subsection 129 (2) of the Streamlining Act corresponding to section 76W of the Public Service Act, to that other provision.
26 Nomination by appropriate organisation
(1) Subject to subregulation (2), for the purposes of paragraph 23 (1) (c) of the Act, the appropriate organisation in relation to an appellant is the organisation:
(a) that is registered under the Conciliation and Arbitration Act; and
(b) under the rules of which a person whose work is comparable to that of the appellant is eligible for membership.
(2) For the purposes of paragraph 23 (1) (c) of the Act, in relation to a person whose work is comparable to that of an appellant who is eligible for membership under the rules of more than one organisation registered under the Conciliation and Arbitration Act, the appropriate organisation is whichever of those organisations has as members the greatest number of persons (whether that number comprises officers, employees or partly officers and partly employees) whose work is so comparable.
(3) For the purposes of subregulations (1) and (2), where:
(a) the classification of an officer is the same or corresponds to; or
(b) the capacity in which an employee is employed in the Service corresponds to or is the same as;
the classification held or last held by the appellant, or the capacity in which the appellant is or was employed in the Service, as the case may be, the work of that officer or employee is comparable to the work of the appellant.
(4) For the purposes of paragraph 23 (1) (c) of the Act, in the absence of a nomination by the organisation that is, under subregulation (1) or (2), the appropriate organisation, the Agency, in consultation with the Australian Council of Trade Unions, shall nominate a person.
27 Documents and statements relating to appeals
(1) Subject to subregulation (3), an appellant may, within 28 days after the end of the period within which he or she was entitled to appeal or within such further period as the Agency may allow for special reasons during that 28 day period, submit to the Agency a statement setting out information relating to the appeal which was not specified in any document by which that appeal was instituted.
(2) Subject to subregulation (3), where an appropriate authority is notified by the Agency of an appeal against the giving of a notice by that authority, it may, within 28 days after the day on which that authority is so notified or within such further period as the Agency may allow for special reasons during that 28 day period, submit to the Agency a statement setting out information relating to the appeal which was not specified in that notice.
(3) Subject to regulation 28, where a party to an appeal submits a statement under subregulation (1) or (2), that party shall, as soon as practicable, furnish a copy of that statement to the other party.
28 Non-disclosure of certain information
(1) Where:
(a) a statement prepared by an appropriate authority for the purposes of subregulation 27 (2) contains information of a medical or psychiatric nature concerning the appellant; and
(b) the Commonwealth Medical Officer advises the appropriate authority that the disclosure of the information to the appellant might be prejudicial to the physical or mental health or well-being of the appellant;
the appropriate authority may exclude that information from the copy of the statement furnished to the appellant under subregulation 27 (3) and give that information instead to a medical practitioner nominated for that purpose by the appellant.
(2) Where information is excluded under subregulation (1) from a copy of a statement furnished to an appellant, the appropriate authority shall, in a separate document accompanying that copy, indicate:
(a) the nature of the information so excluded; and
(b) that that information may be given to a medical practitioner nominated for that purpose by the appellant.
(3) Where information is excluded under subregulation (1) from a copy of a statement furnished to an appellant, the appropriate authority shall, in a separate document accompanying the copy of the statement, furnished to the Agency under regulation 27, indicate the information that has been so excluded.
(4) Where information relating to an appeal is withheld from the appellant by virtue of this regulation, the Committee constituted for the purpose of that appeal shall be so informed and may, notwithstanding any other provision of this regulation, release that information or part of that information to the appellant in such manner and subject to such conditions or limitations as it considers appropriate in the circumstances.
29 Appointment of person to hear evidence
(1) Where a Committee considers that it is impracticable for any evidence in an appeal to be taken by the Committee it may appoint a person, whether a member of the Committee or not, to take that evidence.
(2) A person appointed under subregulation (1) may, for the purpose of taking evidence in an appeal, administer an oath or affirmation.
(3) Where a person appointed under subregulation (1) takes evidence in an appeal, the person shall transmit that evidence to the Committee concerned.
(4) Evidence in an appeal taken by a person appointed under subregulation (1) shall, for the purpose of the hearing and determination of that appeal, be deemed to have been taken by the Committee.
30 Powers of Convenor
For the purposes of the hearing of an appeal, the Convenor of a Committee may, by writing, summon a person to attend before the Committee or before a person appointed under subregulation 29 (1) to give evidence and to produce such documents (if any) as are referred to in the summons.
30A Offences by persons summoned to attend before Redeployment and Retirement Appeal Committees
(1) Subject to subregulations (2) and (3), a person summoned to attend a proceeding before a Redeployment and Retirement Appeal Committee must not, without reasonable excuse:
(a) fail to attend, or to produce documents, in accordance with the summons; or
(b) refuse or fail to be sworn, or to make an affirmation, at the proceeding; or
(c) at the proceeding refuse or fail to answer a question relevant to the proceeding that the Convenor of the Committee requires the person to answer.
Penalty 5 penalty units.
Note As at the commencement of this subregulation, the value of a penalty unit was $100: Crimes Act 1914, subsection 4AA (1).
(2) A person (other than an officer or employee) has a reasonable excuse for failing to attend, or to produce documents, in accordance with the summons if the person has not been given a reasonable sum of money for the reasonable expenses that are likely to be incurred by the person:
(a) in travelling:
(i) from the person’s place of residence to the proceeding; and
(ii) from the proceeding to the person’s place of residence; or
(b) if it is reasonable that the person should be provided with accommodation — for accommodation near the proceeding; or
(c) in producing the documents.
(3) A person referred to in subregulation (1) is not required to answer a question if the answer to that question would tend to incriminate the person.
31 Public and private hearings
(1) Subject to this regulation, a proceeding before a Committee shall be in public.
(2) Where a Committee is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, that Committee may, by order:
(a) direct that a proceeding take place in private and give directions as to the persons who may be present at that proceeding;
(b) give directions prohibiting or restricting the publication of evidence given before that Committee, whether in public or in private, or of matters contained in documents lodged with, or received in evidence by, that Committee; or
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before that Committee, or of the contents of a document lodged with that Committee, in relation to the proceeding.
(3) In considering:
(a) whether the hearing of a proceeding should be held in private; or
(b) whether publication, or disclosure to some or all of the parties, of evidence given before a Committee, or of a matter contained in a document lodged with that Committee or received in evidence by it, should be prohibited or restricted;
that Committee shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before it should be held in public and that evidence given before it and the contents of documents lodged with it or received in evidence by it should be made available to the public and to all the parties, but shall pay due regard to any reasons given to it why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.
32 Representation of parties
A person who is party to an appeal before a Committee may be represented at that appeal by an official of an organization within the meaning of the Conciliation and Arbitration Act or, with the approval of the Committee, by some other person.
33 Consolidation of appeals
(1) Where 2 or more appeals have been made, the Committee may, where it is of the opinion:
(a) that the consolidation of the appeals would expedite the hearing and determination of those appeals; and
(b) that consolidation of those appeals would not prejudice any party to one or more of those appeals;
consolidate those appeals and hear them together.
(2) Where 2 or more appeals are consolidated, the Committee shall cause all other parties to that appeal and the Agency to be notified in writing of that fact as soon as practicable.
(3) Where 2 or more appeals are consolidated:
(a) each party, other than the appropriate authority, shall have the rights of an appellant;
(b) the Agency shall have the same duties and responsibilities in respect of each party to the appeal; and
(c) the Committee that is to hear the appeal shall inform each party of the name of each other party to the appeal.
34 Protection of members of Committee, witness etc
(1) No action or proceeding, civil or criminal, lies against a person who is a Convenor or other member of a Committee for or in respect of any act or thing done in good faith by the person in his or her capacity as such a Convenor or member.
(2) Subject to these Regulations:
(a) a person summoned to attend or appearing before a Committee to give evidence at an appeal; or
(b) an official or other person representing a party at the hearing of an appeal before such a Committee;
has the same protection, and is subject to the same liabilities, in any civil or criminal proceedings, as a witness in proceedings in the High Court.
35 Impartiality of Committee
A Convenor or other member of a Committee shall not take part in the hearing or determination of an appeal where he or she has or has had personal involvement in a matter to be considered in that appeal.
36 Decision of Committee
Where a Committee determines an appeal, it shall as soon as practicable cause all parties to the appeal and the Agency to be notified in writing of its decision on the appeal and of the reasons for that decision.
Part VA Other committees
37 Appropriate organisation for the purposes of section 35A of the Act
(1) Subject to subregulation (2), for the purposes of paragraph 35A (b) of the Act, an organisation is the appropriate organisation in relation to a Department or Commonwealth authority if:
(a) it is an organisation within the meaning of the Industrial Relations Act 1988; and
(b) it is a party to an industrial award that applies in relation to salaries payable in respect of the majority of:
(i) the positions in that Department or Commonwealth authority; or
(ii) a specified class of positions in that Department or authority; and
(c) persons occupying those positions are, or are eligible to be, members of the organisation.
(2) If there is more than 1 organisation ascertained in accordance with subregulation (1), the appropriate organisation is the organisation whose membership includes the larger, or largest, number of persons occupying positions in the Department or authority or in the class of positions in the Department or authority.
Part VB Performance of functions on request
38 Appropriate organisation for the purposes of section 57A of the Act
(1) Subject to subregulation (2), for the purposes of paragraph 57A (b) of the Act, an organisation is the appropriate organisation in relation to a Department or Commonwealth authority if:
(a) it is an organisation within the meaning of the Industrial Relations Act 1988; and
(b) it is a party to an industrial award which applies in relation to salaries payable in respect of the majority of:
(i) the positions in that Department or Commonwealth authority; or
(ii) a specified class of positions in that Department or authority; and
(c) persons occupying those positions are, or are eligible to be members of the organisation.
(2) If there is more than 1 organisation ascertained in accordance with subregulation (1), the appropriate organisation is the organisation whose membership includes the larger, or largest, number of persons occupying positions in the Department or authority or in the class of positions in the Department or authority.
Part VI Miscellaneous
50 Delegation
(1) The Agency may, by writing, delegate, either generally or as otherwise provided by the instrument of delegation, to:
(a) an officer or employee within the meaning of the Public Service Act; or
(b) a person appointed to, or to act in, an office, under a law of the Commonwealth, by the Governor-General or a Minister;
all or any of its powers and functions under these Regulations other than this power of delegation.
(2) A power or function delegated under subregulation (1), when exercised or performed by the delegate, shall, for the purposes of these Regulations, be deemed to have been exercised or performed by the Agency.
(3) A delegation under this regulation does not prevent the exercise of a power or the performance of a function by the Agency.
51 Delegation by Public Service Board or Secretary
(1) The Public Service Board may, by writing, delegate, either generally or as otherwise provided by the instrument of delegation, to:
(a) an officer or employee within the meaning of the Public Service Act; or
(b) a person who holds, or is acting in, an office or appointment under an Act other than the Public Service Act or under an Ordinance of a Territory;
all or any of its powers and functions under these Regulations, other than this power of delegation.
(2) A Secretary may by writing, delegate, either generally or as otherwise provided by the instrument of delegation, to:
(a) an officer or employee within the meaning of the Public Service Act; or
(b) a person who holds, or is acting in, an office or appointment under an Act other than the Public Service Act or under an Ordinance of a Territory, or an office of member of the Public Service Board;
all or any of the Secretary’s powers and functions under these Regulations, other than this power of delegation.
(3) A power or function delegated under subregulation (1) or (2), when exercised or performed by the delegate, shall, for the purposes of these Regulations, be deemed to have been exercised or performed by the Public Service Board or by the Secretary, as the case may be.
(4) A delegation given by a person or body under this regulation does not prevent the exercise of a power or the performance of a function by that person or body.
Notes to the Merit Protection (Australian Government Employees) Regulations
Note 1
Note: The Merit Protection (Australian Government Employees) Regulations (in force under the Merit Protection (Australian Government Employees) Act 1984) as shown in this compilation comprise Statutory Rules 1985 No. 176 amended as indicated in the Tables below.