EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 46

 

Issued by the Authority of the Minister for the Arts and Sport

 

                        Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions) Act 2006

 

Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions) (Transfer of Staff) Regulations 2006

 

 

The Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions Act) Act 2006 (the Act) contains transitional provisions and consequential amendments related to the establishment of the Australian Sports Anti-Doping Authority by the Australian Sports Anti-Doping Authority Act 2006 (the ASADA Act).

 

The Act deals with the consequences of the establishment of the Australian Sports Anti-Doping Authority (ASADA), which occurred by virtue of a change in name to the existing Australian Sports Drug Agency (ASDA).  Among other things, the Act contains provisions dealing with the vesting of assets and liabilities of the ASDA in the Commonwealth, since the ASADA will be a prescribed Agency under the Financial Management and Accountability Act 1997 and will not hold money or other property in its own name.  The Act also provides for the continuing operation of ASDA instruments after the commencement of the Act.

 

Subsection 28(1) of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by Schedule 2 to the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to Schedule 2.  Subsection 28(2) provides that, in particular, regulations may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by the Act, or the enactment of the Act or the ASADA Act.

 

The purpose of the Regulations is to prescribe matters of a transitional nature in relation to the transfer of staff from ASDA to ASADA.

 

Details of the Regulations appear in the Attachment.

 

The Regulations commenced on the day upon which section 20 of the ASADA Act commences.  Section 20 of the ASADA Act commenced on a day fixed by Proclamation, 13 March 2006. 

 

In this Explanatory Statement the following abbreviations are used:

 

Act                                           Australian Sports Anti-Doping Authority (Consequential                                          and Transitional Provisions) Act 2006

 

ASADA                                   Australian Sports Anti-Doping Authority

 

ASADA Act                            Australian Sports Anti-Doping Authority Act 2006

 

ASDA                                      Australian Sports Drug Agency

 

Public Service Act                    Public Service Act 1999

 

Regulations                               The Australian Sports Anti Doping Authority                                                             (Consequential and Transitional Provisions) (Transfer of                                         Staff) Regulations 2006

ATTACHMENT

 

DETAILS OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) (TRANSFER OF STAFF) REGULATIONS 2006

 

Regulation 1 – Name of Regulations

 

Regulation 1 provides that the name of the Regulations is the Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions) (Transfer of Staff) Regulations 2006.

 

Regulation 2 – Commencement

 

Regulation 2 provides that the Regulations commence on the day on which section 20 of the Australian Sports Anti-Doping Authority Act 2006 commenced.

 

Regulation 3 – Definitions

 

Regulation 3 defines certain terms to be used within the Regulations.

 

Regulation 4 – Long service leave

 

Regulation 4 provides for the transfer of long service leave entitlements.  It provides that where a member of the staff of ASDA has transferred to ASADA and the staff member’s previous employment could have been taken into account for determining long service leave (as a member of the staff of ASDA) then that previous employment must be taken into account for the purposes of calculating long service leave entitlements as an employee of ASADA.

 

Regulation 5 – When disciplinary action commenced

 

This regulation provides that disciplinary action is taken to have formally commenced when a person has received written notice in relation to suspected misconduct.  The disciplinary action for suspected misconduct is not taken to have commenced if there has merely been informal disciplinary action in relation to the misconduct, such as counselling.

 

Regulation 6 – When decision finally determined

 

This regulation provides that for the purposes of the Regulations a decision is finally determined when there are not, or are no longer, any review or appeal rights available under the rules formally applied by ASDA.

 

Regulation 7 – Purpose of these Regulations

 

This regulation provides that the purpose of the Regulations is to prescribe matters regarding transition of staff from ASDA to ASADA.  These Regulations facilitate the smooth transition of ASDA staff to employment under the Public Service Act, by providing for the interim arrangements for certain matters occurring before the commencement date.

 

Regulation 8 - Recruitment action relating to engagement or promotion commenced but not decided by commencement

 

This regulation provides that the ASADA Chair may, in relation to former ASDA staff who have transferred to ASADA, continue certain engagement or promotion processes that were commenced by ASDA but not decided at the time of transition to ASADA.  If the ASADA Chair chooses to continue such processes, the regulation requires that the ASADA Chair continue the engagement or promotion in accordance with the Public Service Act. 

 

Regulation 9 - Recruitment action relating to engagement or promotion decided but not effective by commencement

 

This regulation provides that the ASADA Chair may complete engagement or promotion processes, in relation to former ASDA staff who have transferred to ASADA, where a decision on the engagement or promotion was made but was not effective at the time of transition to ASADA.  Such a decision may be given effect by the ASADA Chair as long as it is given effect within 3 months of the commencement of ASADA, and would continue to have effect as if it were made under the Public Service Act.

 

Regulation 10 – Transfer processes commenced but not decided by commencement

 

This regulation provides that the ASADA Chair may continue transfer processes that were commenced prior to the transition to ASADA and where no decision has been made (in relation to former ASDA staff who have transferred to ASADA) by applying Public Service Act transfer processes to the remainder of the transfer process, provided that a decision in relation to the transfer is made within 3 months of the commencement of the ASADA.

 

Regulation 11 – Transfer processes decided but not effective by commencement

 

This regulation provides that the ASADA Chair may complete transfer processes, in relation to former ASDA staff who have transferred to ASADA, under the processes formerly applied by ASDA, in relation to transfer decisions made but not effective by the commencement date, if the transfer is effected within 3 months after the commencement date.  Such a decision continues to have effect as if it were made under the Public Service Act.

 

Regulation 12 – Disciplinary action process – pre-commencement misconduct for which disciplinary action has commenced

 

This regulation provides that the ASADA Chair may complete disciplinary action in relation to pre-commencement misconduct (where no decision has been finally determined), in relation to former ASDA staff who have transferred to ASADA, under the processes formerly applied by ASDA, if action had formally commenced prior to the commencement date.

 

A sanction imposed under the regulation has effect as if it were imposed under the Public Service Act.

 

Regulation 13 – Disciplinary action pre-commencement misconduct for which no disciplinary action has commenced

 

This regulation provides that the ASADA Chair may, in relation to former ASDA staff who have transferred to ASADA, commence disciplinary action in relation to pre-commencement misconduct where no formal action was commenced prior to the commencement date.  The ASADA Chair can commence such action under the Public Service Act misconduct processes, so long as the misconduct involves a suspected breach of the Public Service Act (if it had applied at the time) and did involve a suspected breach of the rules formerly applied by ASDA.

 

Regulation 14 – Certain staffing procedures commenced but not yet finally determined by commencement

 

This regulation provides that the ASADA Chair may, in relation to former ASDA staff who have transferred to ASADA, continue and complete specified staffing processes under the processes formerly applied by ASDA, if action had formally commenced prior to the commencement date but no decision has been finally determined.

 

The specified staffing processes are those relating to inefficiency, redundancy, fitness for duty, loss of essential qualifications, forfeiture of position or performance management.

 

Regulation 15 – Termination of employment commenced but not finally determined by commencement

 

This regulation provides that the ASADA Chair may, in relation to former ASDA staff who have transferred to ASADA, continue complete termination of employment processes (if action had formally commenced prior to the commencement date but decision had been finally determined).  The processes to be continued or completed by the ASADA Chair would be those formerly applied by ASDA, but the termination would have effect as if it were made under the Public Service Act.

 

Regulation 16 – Grievance processes commenced but not finally determined by commencement

 

This regulation provides that the ASADA Chair may continue and complete grievance processes, in relation to actions that occurred pre-commencement, under the processes formerly applied by ASDA in relation to grievance procedures (if action had formally commenced prior to the commencement date but no decision had been finally determined).

 

Regulation 17 – Review of action processes commenced after commencement

 

This regulation provides for ASDA staff who have transferred to ASADA to commence a review of action process in relation to an action that occurred before commencement.  The regulation provides that the ASADA Chair must determine the review in accordance with the Public Service Act.

 

Regulation 18 – Review of decisions and determinations

 

This regulation provides, for the avoidance of doubt, that where the ASADA Chair made a decision or determination under regulation 8, 10, 13 or 16, the employee to whom the decision relates may apply for review under the Public Service Act if the Public Service Act allows such a review.

 

Regulation 19 – ASADA Chair to perform functions of Chief Executive

 

This regulation provides for the ASADA Chair to be able to, to the extent required to fulfil obligations, perform the powers, functions and duties that ASDA or the Chief Executive was authorised to perform before commencement, to the extent required to fulfil obligations.

 

Regulation 20 – Delegations

 

This regulation provides for the ASADA Chair to delegate in writing any of the Chair’s powers or functions under the Regulations.  It also provides that a person exercising powers or functions under such a delegation must comply with any directions given by the ASADA Chair.