Commonwealth Numbered Regulations - Explanatory Statements

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MERIT PROTECTION (AUSTRALIAN FEDERAL POLICE) REGULATIONS (AMENDMENT) 1992NO. 301

EXPLANATORY STATEMENT

STATUTORY RULES 1992 No. 301

Issued by the Authority of the Prime Minister

Merit Protection (Australian Government Employees) Act 1984

Merit Protection (Australian Federal Police) Regulations (Amendment)

The purpose of the amendment is to amend the Schedule to the Merit Protection (Australian Federal Police) Regulations (the Regulations). The Regulations provide that the Merit Protection (Australian Government Employees) Act 1984 (the Act) applies to and in relation to members and staff members of the AFP subject to the modifications set out in the Schedule to the Regulations. The amendments to the Schedule bring the modifications to the Act into line with recent amendments to the Australian Federal Police Act 1979 and with recent and concurrent amendments to the Australian Federal Police Regulations.

The details of the proposed Amendment are as follows:

Regulation 1 provides that the Regulations are amended.

Regulation 2 amends the modifications to the Act set out in the Schedule to the Regulations as follows:

       Subregulations 2.1, 2.2, 2.7, 2.8 and 2.10 omit references to redeployment from provisions relating to redeployment and retirement appeals in the existing modification of subsection 3(1) and substituted section 4 of the Act (as set out in the Schedule to the Regulations) and in the previously unmodified sections 22 and 23, subsection 25(1) and section 26 of the Act. This reflects the fact that the rights in relation to redeployment which formerly existed under sections 38A and 38C to 38F of the Australian Federal Police Act 1979 (the AFP Act) were abolished as part of the changes made to employment in the AFP by the Australian Federal Police Legislation Amendment Act (No. 2) 1989.

       Subregulations 2.3, 2.4, 2.11 and 2.12 replace the existing substituted paragraphs 4(c) and 6(b), section 38 and paragraph (a) of the definition of "relevant decision" in subsection 57(2) of the Act (as set out in the Schedule to the Regulations). The new substituted provisions extend existing provisions for review of, and giving of advice on members' and staff members' rights in relation to, non-appellable promotions which are directly reviewable under section 36B of the AFP Act to cover promotions which are declared by section 36C of the AFP Act to be reviewable under section 36B. This is an element of a scheme to allow for positions of member and staff member to be advertised as alternatives and for cross-promotions between the member and staff member employment streams following such advertisements. Section 36C of the AFP Act, introduced by the Crimes Legislation Amendment Act 1991, provides for review under section 36B of promotions under this scheme, including cross-stream promotions, to nonappellable positions. Section 36B does not directly provide review rights to an applicant, because of technical legal problems arising from the existence of the distinct member and staff member employment streams.

•       Subregulation 2.5 amends substituted paragraph 9(a) of the Act (as set out in the Schedule to the Regulations) by inserting a reference to new regulations 25CA and 25CB of the Australian Federal Police Regulations (the AFP Regulations). These new regulations were inserted by the Australian Federal Police Regulations (Amendment), which were made simultaneously with these Regulations. They form another element of the cross-stream promotion scheme described above, authorising crossstream appeals in relation to appellable vacancies advertised under the scheme if the promotee and appellant initially belonged to different streams. The amendment to substituted paragraph 9(a) provides for the function of Promotion Appeals Committees established under modified section 9 of the Act to include determination of such cross-stream appeals.

•       Subregulations 2.6 and 2.9 replace references to Division 2 of Part IIA of the AFP Regulations in substituted sections 11 and 24 of the Act (as set out in the Schedule to the Regulations) with references to Part 2A of the AFP Regulations. This reflects amendments to the AFP Regulations introduced by Statutory Rules 1989 No. 362. In addition, subregulation 2.6 removes a requirement in substituted section 11 that Part 2A be read, for the purpose of the section (viz. determining who is a party to a promotion appeal), as it stood on 1 January 1989. This requirement was designed to avoid confusion about applicable rules during a transitional period and is no longer necessary.

•       Subregulation 2.13 amends substituted paragraph (b) of the definition of "relevant decision" in subsection 57(2) of the Act (as set out in the Schedule to the Regulations) by omitting references to section 38C and to subsections 38D(1) and 38E(1) of the AFP Act. The provisions of the AFP Act referred to, which provided for decisions to be made by the Commissioner of the AFP, were repealed by the Australian Federal Police Legislation Amendment Act 1989. The identically numbered provisions which replaced them did not authorise the Commissioner to make decisions.

•       Subregulation 2.14 amends substituted paragraph (c) of the definition of "relevant decision" in subsection 57(2) of the Act (as set out in the Schedule to the Regulations) by adding a reference to Division 2A of Part 3 of the AFP Regulations. Division 2A includes provision for decisions to be made in relation to promotion appeals.


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