Commonwealth Numbered Regulations - Explanatory Statements

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MERIT PROTECTION (AUSTRALIAN GOVERNMENT EMPLOYEES) REGULATIONS (AMENDMENT) 1995 NO. 247

STATUTORY RULES 1995 No. 247

Issued by the authority of the Special Minister of State

Merit Protection (Australian Government Employees) Act 1984

Merit Protection (Australian Government Employees) Regulations (Amendment)

Following the amendments made on 8 December 1994 to the Merit Protection (Australian Government Employees) Act 1984 (the Act), the Merit Protection (Australian Government Employees) Regulations (the Regulations) require consequential amendments. In addition, an amendment regarding procedures for Review Committees is proposed.

A. Provision defining "appropriate organisations" (trade unions) for the purpose of ss35A & 57A

2.       The Merit Protection (Australian Government Employees) Amendment Act 1994 inserted sections 35A and 57A into the Act. These sections provide for the MPRA to undertake certain functions in response to a request by:

(a)       the relevant Department or Commonwealth authority; and

(b)       an organisation that is, as provided by the regulations, the "appropriate organisation".

3.       Consequently, it is necessary to amend the Regulations to specify the circumstances in which an industrial organisation, ie trade union, is to be the "appropriate organisation" for the purposes of sections 35A and 57A. Proposed regulations 37 and 3 8 would insert a definition based on the union with the largest actual or potential membership in the particular Department given the nature of the majority of positions or specified positions in the Department.

B. Penalties for failure to comply with summons issued by a Disciplinary Appeal Committee or a Redeployment and Retirement Appeal Committee

4.       Under regulations 17 and 30, a Convenor of a Disciplinary Appeal Committee or Redeployment and Retirement Appeal Committee may summon a Person to give evidence or produce documents.

5.       In the case of a Disciplinary Appeal Committee, paragraph 85(2)(g) of the the Act provides that the regulations may provide a penalty of up to $500 for a failure to comply with a summons. However, regulation 18 currently provides for a penalty of $40. This provision may be contrasted with section 61 of the Administrative Appeals Tribunal Act 1975 which, in the same circumstances, provides for a penalty of $1,000 or imprisonment for 3 months.

6.       Until the recent amendment of paragraph 85(2)(g) the Act by the Merit Protection (Australian Government Employees) Amendment Act 1994, there was no provision for a penalty for a failure to comply with a summons by a Redeployment and Retirement Appeal Committees.

7.       Proposed regulations 18 and 30A impose a penalty of "5 penalty units" ($500) for the failure to answer a summons without reasonable excuse and set out situations which give rise to a "reasonable excuse". These situations include the failure to provide reasonable expenses for travel, accommodation or production costs. Subregulations 18(3) and 30A(3) provide that a person is not required to answer a question if the answer would tend to incriminate that person.

C.       Deadlines for provision of promotion appeal statements to be enforced

10.       Recommendation No 4 of the Farrow Report of 1991-Review of MPRA Support Staffing-was that the MPRA should seek approval for legislative amendments to allow deadlines to be set for the provision of statements to Promotion Appeal Committees. The reason given for the recommendation was to enable a Promotion Appeal Committee to determine a case on the papers before it at any time after the deadline given to the parties for the provision of statements supporting the appeal.

11.       Subregulation 5A(3) of the Regulations already specifies a deadline for the provision of appeal statements and allows for an extension of time to be granted. However, there is no express provision authorising the Committee to determine the appeal if the deadline is not met.

12.       It is proposed that regulation 5A be amended to more clearly provide that if a party is granted an extension of time or a further extension of time to lodge a statement under subregulations (3) and (4), and that deadline is not met, the Committee may determine the matter on the papers before it.