87JEmployment of officers by certain authorities etc. upon transfer of functions

##### 87J Employment of officers by certain authorities etc. upon transfer of functions (1) In this section: > prescribed authority means a body, whether incorporated or not, established for a public purpose by a law of a State. > prescribed function means a function that is declared, by a declaration under this section that is in force, to be a prescribed function corresponding to a declared Commonwealth function. > prescribed office means an office or appointment the holder of which is appointed by the Governor of a State or by a Minister of a State. > statutory authority means: (a) a body, whether incorporated or not, established for a public purpose by a law of the Commonwealth or of a Territory; (b) a body corporate incorporated under a law of a State or of a Territory, being a body corporate in which the Commonwealth has a controlling interest; or (c) a prescribed authority. > statutory office means: (a) a Commonwealth office; (b) an office or appointment other than a Commonwealth office that could be declared by the regulations to be a Commonwealth office for the purposes of this Part; or (c) a prescribed office. > Territory does not include the Australian Capital Territory or the Northern Territory. (2) A reference in this section to employment by a statutory authority shall be read as including a reference to: (b) service as a member (other than as Commissioner of Police) or staff member of the Australian Federal Police; (c) employment as a member of the Police Force of a Territory other than the Northern Territory; (d) employment under the Naval Defence Act 1910, other than employment in an office or appointment in, or as a member of, the Australian Navy; (e) employment in the Australian Security Intelligence Organization, other than employment in the office of Director‑General of Security; (f) employment under section 10 of the Supply and Development Act 1939; or (g) employment in an office or appointment that is prescribed for the purposes of paragraph 87(2)(m). (2A) A reference in this section: (a) to a State must be read as including the Australian Capital Territory and the Northern Territory; and (b) to a Governor of a State must be read as including the Australian Capital Territory Executive and the Administrator of the Northern Territory; and (c) to a Minister of a State must be read as including a Minister for the Australian Capital Territory and an Executive Member of the Legislative Assembly of the Northern Territory; and (d) to a Premier of a State must be read as including the Chief Minister for the Australian Capital Territory and the Chief Minister of the Northern Territory. (3) Subject to this section, where the Board notifies the Prime Minister that it is satisfied that officers included in a class of officers are performing duties connected with the performance of a function, the Prime Minister may, by declaration published in the Gazette, declare that function to be a declared Commonwealth function and the duties of officers included in that class of officers to be connected with the performance of that declared Commonwealth function. (4) Subject to subsection (7), where the Board notifies the Prime Minister that it is satisfied: (a) that persons employed, or to be employed, in offices included in a class of statutory offices; or (b) that persons employed, or to be employed, or included in a class of persons employed, or to be employed, by a statutory authority, by a State or in the Public Service of a Territory; are performing, or will perform, duties connected with the performance of a function that is the same as, or is similar to, a function that is being, or has been, declared to be a declared Commonwealth function, the Prime Minister may, in the declaration published in the Gazette under subsection (3) declaring that function to be a declared Commonwealth function, or in a subsequent declaration published in the Gazette, declare: (c) that first‑mentioned function to be a prescribed function corresponding to that declared Commonwealth function; and (d) employment: (i) in the offices included in that class of statutory offices; or (ii) by that statutory authority, by that State or in the Public Service of that Territory on duties connected with the performance of that prescribed function; to be employment connected with the performance of that prescribed function. (5) For the purposes of this Act, where a person, being an officer included in a class of officers whose duties have been declared to be connected with the performance of a declared Commonwealth function becomes engaged in employment that has been declared to be connected with a prescribed function that corresponds to that declared Commonwealth function: (a) the person becomes, upon becoming engaged in that employment, an eligible person in relation to that declared Commonwealth function; (b) the person continues to be such a person until he ceases to be engaged in employment that is declared to be connected with the performance of a prescribed function that corresponds to that declared Commonwealth function; (c) if, at any time while he continues to be such a person, the employment in which he is engaged is not eligible public employment, this Part applies to and in relation to him as if that employment were eligible public employment; and (d) if the first‑mentioned employment is employment in a statutory office other than a prescribed office or employment by a statutory authority other than a prescribed authority, the person retains, in respect of the first‑mentioned employment, such rights (if any) in respect of leave of absence for recreation and leave of absence on account of illness as had accrued to him immediately before he became engaged in the first‑mentioned employment. (6) Where an officer becomes an eligible person in relation to a declared Commonwealth function, he shall, notwithstanding any other provision of this Act, be deemed to have ceased to be an officer at the expiration of the day immediately preceding the day on which he becomes such a person. (6A) A declaration shall not be made under this section declaring: (a) employment in an office or appointment the holder of which is appointed by the Governor of a State or by a Minister of a State; (b) employment in an office included in a class of such offices; (c) employment by a body, whether incorporated or not, established for a public purpose by a law of a State; or (d) employment by a State; to be employment that is connected with the performance of a prescribed function that corresponds to a declared Commonwealth function, unless the Premier of the State has informed the Prime Minister, in writing, that he has agreed to the making of the declaration. (7) A declaration shall not be made under this section declaring employment in a statutory office (being a prescribed office), in an office included in a class of statutory offices (being prescribed offices), by a statutory authority (being a prescribed authority) or by a State to be employment that is connected with the performance of a prescribed function that corresponds to a declared Commonwealth function unless, in relation to that employment, the conditions specified in subsection (8) are fulfilled. (8) The conditions required by subsection (7) to be fulfilled, in relation to employment that will, upon the making of a declaration under this section, be employment that is connected with the performance of a prescribed function that corresponds to a declared Commonwealth function, are as follows: (a) that the Board is satisfied that the terms and conditions of employment that will be applicable to the service in that employment of a person who is, by virtue of that declaration, an eligible person in relation to that declared Commonwealth function will be such that: (i) the person retains, in respect of the employment, such rights (if any) in respect of leave of absence for recreation and leave of absence on account of illness as had accrued to him immediately before he became engaged in the employment; (ii) the person is entitled to a period or periods of long service leave, and payment in lieu of long service leave shall be made to or in relation to the person, in respect of the employment, as if his service in the employment were service in the Service unless, within 3 months after he becomes engaged in the employment, he elects, in writing, for those entitlements to be determined otherwise; and (iii) if the person is contributing for superannuation benefits under the Superannuation Act 1976, or the Superannuation Act 1990, immediately before the day on which he becomes engaged in the employment, he shall be exempted from liability to contribute for superannuation benefits otherwise than under the Superannuation Act 1976 or the Superannuation Act 1990 in respect of the employment unless, within 3 months after that day, he elects, in writing, to contribute for those other benefits; (b) that arrangements satisfactory to the Minister for the time being administering the Superannuation Act 1976 or to an officer authorized by that Minister for the purposes of this paragraph have been made for and in relation to the provision of superannuation benefits under that Act in respect of persons engaged in that employment who: (i) are eligible persons in relation to that declared Commonwealth function; and (ii) are persons to whom section 14A of that Act applies; (c) that arrangements satisfactory to the Minister for the time being administering the Superannuation Act 1990 or to an officer authorised by that Minister for the purposes of this paragraph, have been made in relation to the provision of superannuation benefits under that Act for persons engaged in that employment who: (i) are eligible persons in relation to that declared Commonwealth function; and (ii) are members of the superannuation scheme established by deed under that Act by force of paragraph 6(1)(h) of that Act. (9) Where: (a) while a declaration that declares employment to be connected with the performance of a prescribed function that corresponds to a declared Commonwealth function is in force, a change occurs in the terms and conditions applicable to the employment of persons engaged in that employment who are eligible persons in relation to that declared Commonwealth function; and (b) it appears to the Board that those terms and conditions are no longer such that the conditions set out in subsection (8) are fulfilled; the Board shall, subject to the approval of the Prime Minister, by instrument published in the Gazette, revoke that declaration, or revoke that declaration in so far as it relates to that employment. (10) Where the Board revokes a declaration that declares employment to be connected with the performance of a prescribed function that corresponds to a declared Commonwealth function, or revokes such a declaration in so far as it relates to any such employment, notwithstanding the revocation, this Part continues to apply to and in relation to a person who, immediately before the revocation, was engaged in that employment and was an eligible person in relation to that declared Commonwealth function as if, while he continues to be engaged in that employment: (a) he were an eligible person in relation to that declared Commonwealth function; and (b) he were engaged in eligible public employment.