5 notable changes for government agencies to be aware of
The Public Service Regulations 2023 (2023 Regulations), made under the Public Service Act 1999 (the Act), commenced on 30 March 2023.
The 2023 Regulations replace and largely remake the Public Service Regulations 1999 (1999 Regulations) with minor streamlining, clarification, and technical amendments aimed at aiding the more efficient administration of the powers and functions of the 1999 Regulations.
These unsubstantial changes mainly remove unnecessary explanatory provisions and redraft ambiguous provisions – but what do the new Regulations mean for agencies?
The big picture
Some minor changes incorporated in the 2023 Regulations include consolidating all definitions into section 5 and reordering without substantively amending some provisions, such as the now section 103 – Use and disclosure of personal information.
Importantly, most provisions from the 1999 Regulations have been renumbered, and it should be noted that each provision is now referred to as a ‘section’ rather than a ‘regulation.’
However, there are five particular changes to the 1999 Regulations that agencies should be aware of moving forward:
- The inclusion of a new ground for termination of employment on recommendation from the National Anti-Corruption Commission (NACC).
- The express provision of the Australian Public Service Commissioner’s (APS Commissioner) power to deliver and charge for learning and development programs delivered outside the Australian Public Service (APS).
- The updated definition of ‘outsider’ under Section 105 – Delegations, which now serves to exclude members of the Australian Defence Force (ADF).
- Technical changes to the operation of non-ongoing provisions to ensure compliance with the Fair Work Act 2009 (FW Act).
- The inclusion of clarification as to the outcome of a Promotion Review Committee (PRC).
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Section 15: Termination of employment on recommendation from the NACC
This section in the 2023 Regulations was included to reflect the enactment of the National Anti-Corruption Commission Act 2022 (NACC Act). Under section 149 of the NACC Act, the National Anti-Corruption Commissioner is required to prepare reports on corruption investigations undertaken by the NACC and is empowered to make recommendations which can include the termination of employment.
Under section 29 of the Act, an Agency Head is permitted to terminate the employment of ongoing and non-ongoing employees in their agency. Section 29(3)(h) also enables the Regulations to prescribe grounds for termination. Accordingly, section 15 of the 2023 Regulations provide that it is a ground for termination of the employment of an ongoing APS employee or a non-ongoing APS employee that an investigation report includes a recommendation to terminate the person’s employment.
According to Circular 2023/1A: Commencement of the Public Service Regulations 2023 (Circular), this new ground for termination is to be used in cases of serious corrupt conduct as determined by the NACC, where there is a strong public interest in severing an individual’s employment with the Commonwealth. The Circular states that “a NACC recommendation for termination would significantly prejudice any subsequent determination of breach of the Code of Conduct and any sanction decision… [but] agencies would nevertheless be expected to provide procedural fairness to an employee’ before any termination decisions are made.
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Section 57: Delivery of learning and development programs
The 2023 Regulations allow the APS Commissioner to, on request, deliver and charge for learning and development programs to:
• Commonwealth agencies other than APS agencies
• a State or Territory
• a Department of State, or
• an authority of a State or Territory.
The Explanatory Memorandum attached to the 2023 Regulations notes that this is a measure to strengthen the legislative basis for the APS Academy delivering such programs to a range of entities and bodies for a fee.
Section 105: Definition of outsider excludes ADF members
Section 105(9) of the 2023 Regulations amends the definition of “outsider” for the purposes of delegation to exclude ADF members, as well as APS employees and any person appointed to an office by the Governor-General or by a Minister under a law of the Commonwealth. This allows Agency Heads to delegate their functions or powers to ADF members without first being required to obtain the APS Commissioner’s approval, and will enable agencies to operate more effectively and efficiently where they have an integrated workforce of ADF and APS personnel.
However, it should be noted that the definition of “outsider” as included in the 1999 Regulations is also contained in the Act and the Australian Public Service Commissioner’s Directions 2022 (the Directions). The Circular states that these definitions will be amended later in 2023, subject to the passage of legislation. Until the 2023 Regulations’ definition is included in the Act and the Directions, agencies will still need to seek approval from the APS Commissioner prior to delegating their powers or functions to ADF members.
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Technical changes to the operation of non-ongoing provisions
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amends the FW Act to limit the use of fixed-term contracts for the same role to the shorter of two years (including renewals) or two consecutive contracts (subject to exceptions).
To ensure consistency with these amendments, the 2023 Regulations seek to limit fixed-term contracts for the same role to two years, or two consecutive contracts. Longer non-ongoing contracts may be approved by Agency Heads, but only where they can be satisfied such arrangements would not contravene the fixed-term provisions of the amended FW Act due to commence by December 2023. In addition, section 13(5)(b) of the 2023 Regulations, which limits non-SES non-ongoing engagements to 18 months in certain circumstances, will only apply up until the fixed-term provisions commence later in 2023. This is intended to simplify the drafting of the provisions for non-SES employees.
Clarification to the outcome of a PRC
The 2023 Regulations provide that where an applicant for review by the PRC is an APS employee, the PRC will make a decision on whether the promotion or engagement decision will be upheld.
Where the applicant for review is a Parliamentary Services employee, the 2023 Regulations provide that the PRC will provide non-binding recommendations to the Agency head for consideration. The PRC recommendation, as under section 22 of the 2023 Regulations, is not binding upon the Agency Head, but if the Agency head decides not to act in accordance with the recommendation they must seek the views of the applicant and, if the review is of a promotion decision, the person promoted.
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What does this mean for Agencies?
Agencies should review and update relevant internal policies and procedures to ensure that the changes in the 2023 Regulations are accurately reflected in all governance documents. The Circular notes that particular thought should be given to the incorporation of the changes to non-ongoing arrangements into current recruitment processes, and to remaking all delegation instruments for Agency Head powers and functions under the 2023 Regulations.
As part of this, agencies should consider whether any delegation instruments made under the 1999 Regulations will continue to have transitional effect under Part 11 of the 2023 Regulations, for reasons including that an action that commenced before 30 March 2023 has not yet concluded and decision-making capacity over that action was delegated by an Agency Head under the 1999 Regulations.
Katherine Armytage is a partner at Maddocks in Canberra practicing in information law, particularly in the areas of privacy and data governance, sharing, and protection.
