Circular 2023/1A: Commencement of the Public Service Regulations 2023
Purpose
- This circular supercedes and entirely replaces Circular 2023/1: Commencement of the Public Service Regulations 2023. The change in this circular from Circular 2023/1 is to amend the guidance to APS agencies relating to delegation instruments.
Summary of the Public Service Regulations 2023
- New Public Service Regulations 2023 (the 2023 Regulations) have been made under the Public Service Act 1999 (the Act). The 2023 Regulations replace the Public Service Regulations 1999 (1999 Regulations) which were due to sunset on 1 April 2023. The 2023 Regulations commenced on 30 March 2023.
- The 2023 Regulations remake the 1999 Regulations with minor streamlining, clarifying and technical amendments intended to facilitate more efficient administration of the powers and functions of the 1999 Regulations.
- Streamlining, clarifying and technical changes from the 1999 Regulations to the 2023 Regulations include:
- amendments to the operation of non-ongoing provisions
- the inclusion of a new ground for termination of employment
- clarification of the outcome of a Promotion Review Committee process
- a consolidation of all definitions into the one section
- a reordering of some provisions to ensure that, as far as practicable, they appear in the same order as the empowering provisions in the Act
- the incorporation of Schedule 1 from the 1999 Regulations - Non-reviewable actions, into section 37 – What APS actions are reviewable actions, and
- a renumbering of the entire instrument.
- Minor substantive changes from the 1999 Regulations to the 2023 Regulations include an amendment to the:
- definition of an outsider and
- Australian Public Service Commissioner’s power to deliver and charge for the delivery of learning and development programs.
- The Australian Public Service Commissioner’s Directions 2022 will be amended in the first half of 2023 to make minor amendments that are consequential to the remade Regulations.
Technical changes to the operation of non-ongoing provisions
- The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amends the Fair Work Act 2009 (the FW Act) to limit the use of fixed term contracts for the same role beyond two years (including renewals) or two consecutive contracts - whichever is shorter (subject to certain exceptions). If these rules are breached, the contract will still be valid, except for the term of the contract that provides for its expiry on a set date. The fixed term provisions in the FW Act are due to commence by December 2023.
- To ensure consistency with the FW Act, non-ongoing provisions in the 2023 Regulations have changed from the 1999 Regulations. In considering whether to enter into a new SES or non-SES non-ongoing contract an Agency Head will now need to be satisfied that the engagement would not contravene the fixed term provisions of the FW Act (section 333E(1)).
- In addition, paragraph 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.
- Additional information on non-ongoing engagements will be available on the Commission’s non-ongoing (temporary) employment webpage shortly. Further information on the changes to the FW Act is available on the Department of Employment and Workplace Relations website.
Technical change to include a new ground for termination
- Section 29 of the Act provides for an Agency Head to terminate the employment of ongoing and non-ongoing employees in their agency, and enables the Regulations to prescribe grounds for termination.
- The 2023 Regulations provide for termination of employment on the recommendation of the National Anti-Corruption Commission (NACC). * Section 149 of the National Anti-Corruption Commission Act 2022 requires the National Anti-Corruption Commissioner to prepare reports on corruption investigations, and allows them to make recommendations, which can include termination of employment.
- None of the grounds for termination of ongoing employees under paragraphs 29(3)(a) to (g) of the Act could authorise termination on the recommendation of the NACC, and no further grounds were prescribed in the 1999 Regulations in relation to ongoing or non-ongoing employees.
- The new ground for termination would 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 relationship with the Commonwealth.
- A NACC recommendation for termination would significantly prejudice any subsequent determination of breach of the Code of Conduct, and any sanction decision—hence the need for a discrete provision for termination following a NACC investigation.
- Agencies would nevertheless be expected to provide procedural fairness to an employee before a decision is made to terminate their employment on this new ground.
Clarification to the outcome of a Promotion Review Committee (PRC)
- The 2023 Regulations provide that where an applicant for review is an APS employee, the PRC will make a decision on whether the promotion or engagement decision will be upheld.
- The 2023 Regulations have been amended to provide that where an applicant for review is a Parliamentary Services employee, the PRC provides a recommendation to the Agency Head for consideration.
- The PRC recommendation is not binding on 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.
Amending the definition of ‘outsider’
- The 2023 Regulations have updated the definition of ‘outsider’ to exclude Australian Defence Force members. This means that an Agency Head can delegate their functions or powers under the 2023 Regulations to members of the Australian Defence Force without first seeking the Australian Public Service Commissioner’s approval to do so.
- However, the definition of ‘outsider’ is also a contained in the Act and the Directions. These definitions will be amended later in 2023, subject to passage of legislation. Until these changes are made to the Act and the Directions, agencies will still need to seek approval from the Australian Public Service Commissioner prior to delegating their powers or functions to Australian Defence Force members.
Authorisation of charging of fees for learning and development programs
- The 2023 Regulations now include provision for the Australian Public Service Commissioner, on request, to deliver learning and development programs to Commonwealth agencies other than APS Agencies; a State and Territory; a Department of State, or an authority of a State or Territory, and fees may be charged.
What should agencies do next?
- Agencies should review and update internal policies and procedures to ensure that they appropriately reflect the changes in the 2023 Regulations.
- Agencies should consider how to incorporate the changes to non-ongoing arrangements into their current recruitment processes.
- Agencies should immediately: * make new delegation instruments for Agency Head powers and functions under the 2023 Regulations, and * remake relevant decisions made between 30 March 2023 and the date the new delegation instruments are made, so that all decisions made after 30 March 2023 have been made pursuant to delegations under the 2023 Regulations.
- Agencies do not need to repeal existing delegation instruments that were made under the 1999 Regulations. Generally, such delegation instruments have no effect as the 1999 Regulations have been repealed. However, some delegations under the 1999 Regulations may continue to have some transitional effect under Part 11 of the 2023 Regulations in certain circumstances. For example, a review of action that commenced before 30 March 2023 that has not yet concluded could be decided by a delegate under the 1999 Regulations (see section 109 of the 2023 Regulations).
Further information
- For further advice on the operation of the 2023 Regulations, you can contact the Commission’s: * Employment Policy team in relation to changes to non-ongoing engagement, definition of ‘outsider’ and the outcome of a PRC: employmentpolicy@apsc.gov.au * Integrity and Ethics team in relation to the new ground for termination: ethics@apsc.gov.au * The APS Academy team in relation to charging of fees for learning and development programs: apsacademy@apsc.gov.au
- A table comparing the numbering between the 1999 and 2023 Regulations is set out at Attachment A.
Attachment A – Public Service Regulations comparison table
|
Regs 1999 provision (i.e regulation) title |
Regs 1999 provision (i.e. regulation) |
Regs 2023 provision (i.e section) |
Regs 2023 provision (i.e. section) title |
|
Name of Regulations |
1.1 |
1 |
Name |
|
|
- |
2 |
Commencement |
|
|
- |
3 |
Authority |
|
|
- |
4 |
Schedules |
|
Definitions – the Dictionary |
1.3 8A.1 Dictionary |
5 |
Definitions |
|
Meaning of higher classification |
Sch 2 |
6 |
Meaning of higher classification |
|
Duty not to disclose information (Act s 13) |
2.1 |
7 |
Duty not to disclose information |
|
Statutory office holder bound by Code of Conduct |
2.2 |
8 |
Statutory office holder bound by Code of Conduct |
|
Limitation on sanctions for breaches of Code of Conduct (Act s 15) |
2.3 |
9 |
Limitation on sanctions for breaches of Code of Conduct |
|
Condition of engagement – health clearance (Act s 20) |
3.1 |
10 |
Condition of engagement – health clearance |
|
Direction to attend medical examination (Act s 20) |
3.2 |
11 |
Direction to attend medical examination |
|
Approval of schemes for non-ongoing APS employees to gain skills and experience (Act s 20) |
3.3 |
- |
No equivalent provision |
|
Engagement of SES employees (Act s 22) |
3.4 |
12 |
Engagement of SES employees for a specified term |
|
Engagement of non-ongoing non-SES employees |
3.5 |
13 |
Engagement of non-ongoing non-SES employees |
|
Suspension from duties (Act s 28) |
3.10 |
14 |
Suspension from duties |
|
New provision |
- |
15 |
Termination of employment |
|
Knowledge of Act, Regulations and Commissioner’s Directions |
3.16 |
16 |
Knowledge of Act, Regulations and Commissioner’s Directions |
|
Function of ISAC |
4.1 |
61 |
Function of ISAC |
|
Establishment of ISAC |
4.2 |
60 |
Establishment of ISAC |
|
Establishment of ISAC |
4.2(2) |
71 |
Merit Protection Commissioner authorised to charge fees |
|
Constitution of ISAC |
4.3 |
62 |
Constitution of ISAC |
|
ISAC procedures – minimum requirements |
4.4 |
63 |
ISAC procedures – minimum requirements |
|
ISAC procedures – Merit Protection Commissioner’s instructions |
4.5 |
64 |
ISAC procedures – Merit Protection Commissioner’s instructions |
|
Assistance to ISAC |
4.6 |
65 |
Assistance to ISAC |
|
Assessment and recommendation by ISAC |
4.7 |
66 |
Assessment and recommendation by ISAC |
|
Non-agreement on recommendation by ISAC |
4.8 |
67 |
Non-agreement on recommendation by ISAC |
|
ISAC recommendation not binding |
4.9 |
68 |
ISAC recommendation not binding |
|
Effect of acting on ISAC recommendation |
4.10 |
69 |
Effect of acting in accordance with ISAC recommendation |
|
Effect of not acting in accordance with ISAC recommendation |
4.11 |
70 |
Effect of not acting in accordance with ISAC recommendation |
|
Offence |
4.12 |
- |
Removed |
|
General policy about review |
5.1 |
17 |
General policy about review |
|
Outline of Part 5 |
5.2 |
- |
Removed |
|
Review of certain promotion and engagement decisions |
5.3 |
18 |
Review of APS actions – certain promotion decisions and engagement decisions |
|
Review of other APS action |
5.4 |
19 |
Review of other APS actions |
|
Agency Head’s responsibility |
5.5 |
- |
Removed |
|
Application of Division 5.2 |
5.6 |
20 |
Application of this Division |
|
Entitlement for review: promotion decision |
5.7 |
21 |
Entitlement to review – promotion decisions |
|
Entitlement for review: engagement decision |
5.7A |
22 |
Entitlement to review – engagement decisions involving Parliamentary Service employees |
|
Grounds for review |
5.8 |
23 |
Grounds for review |
|
Application for review |
5.9 |
24 |
Application for review |
|
Appointment of PRC |
5.10 |
25 |
Appointment of PRC |
|
Constitution of PRC |
5.11 |
26 |
Constitution of PRC |
|
Statements by parties |
5.12 |
27 |
Statements by parties |
|
Frivolous or vexatious applications |
5.13 |
28 |
Frivolous or vexatious applications |
|
PRC procedures – minimum requirements |
5.14 |
29 |
PRC procedures – minimum requirements |
|
PRC procedures – Merit Protection Commissioner’s instructions |
5.15 |
30 |
PRC procedures – Merit Protection Commissioner’s instructions |
|
Assistance to PRC |
5.16 |
31 |
Assistance to PRC |
|
Requirement to provide information or documents |
5.17 |
32 |
Requirement to provide information or documents |
|
Conduct of review by PRC |
5.18 |
33 |
Conduct of review by PRC |
|
Non-agreement on decision by PRC |
5.19 |
34 |
Non-agreement on decision or recommendation by PRC |
|
Effect of PRC decision |
5.20 |
35 |
Effect of PRC decision or PRC recommendation |
|
Offence |
5.21 |
- |
Removed |
|
Entitlement to review |
5.22 |
36 |
Entitlement to review |
- Schedule 1 – Non-reviewable actions |
5.23 Sch 1 |
37 |
What APS actions are reviewable actions |
|
Application for primary review |
5.24 |
38 |
Application for primary review |
|
Referral to Merit Protection Commissioner |
5.25 |
39 |
Referral to Merit Protection Commissioner |
|
Notice that action not reviewable |
5.26 |
40 |
Notice that APS action is not a reviewable action |
|
Conduct of review by Agency Head |
5.27 |
41 |
Conduct of review by relevant Agency Head |
|
Conduct of review by Merit Protection Commissioner etc |
5.28 |
42 |
Conduct of review by Merit Protection Commissioner |
|
Application for secondary review |
5.29 |
43 |
Application for secondary review |
|
Agency Head to give documents to Merit Protection Commissioner |
5.30 |
44 |
Agency Head to give documents to Merit Protection Commissioner |
|
Conduct of review |
5.31 |
45 |
Conduct of review by Merit Protection Commissioner |
|
Action by Agency Head |
5.32 |
46 |
Action by Agency Head |
|
Review procedures – minimum requirements |
5.33 |
47 |
Review procedures – minimum requirements |
|
Requirement to provide information or documents |
5.35 |
48 |
Requirement to provide information or documents |
|
Making of application does not operate as stay |
5.36 |
49 |
Making of application does not operate as stay |
|
Offence |
5.37 |
- |
Removed |
|
Commissioner’s functions – inquiries into Merit Protection Commissioner’s behaviour (Acts41(1)) |
6.1 |
55 |
Inquiries into Merit Protection Commissioner’s behaviour |
|
Australian Public Service Commissioner’s functions – inquiries into alleged breaches of Code of Conduct by statutory office holders (Act s41(2)(p)) |
6.1A |
56 |
Inquiries into alleged breaches of Code of Conduct by statutory office holders |
|
Australian Public Service Commissioner’s functions – inquiries into public interest disclosures that relate to alleged breaches of the Code of Conduct (Act s41(2)(o)) |
6.1B |
54 |
Inquiries into public interest disclosures relating to alleged breaches of the Code of Conduct |
|
Australian Public Service Commissioner’s functions – inquiries into alleged breaches of Code of Conduct by Agency Heads (Act s 41A) |
6.2 |
50 |
Report on result of inquiry – prescribed Statutory Agencies |
|
Circumstances in which Australian Public Service Commissioner may decline to conduct, or may discontinue, inquiry into alleged breach of Code of Conduct by Agency Head |
6.3 |
51 |
Circumstances in which Australian Public Service Commissioner may decline to conduct, or discontinue, inquiry |
|
Basic requirements for procedures for determining alleged breach of Code of Conduct by an APS employee or a former APS employee |
6.4 |
52 |
Basic requirements for procedures for determining alleged breach of Code of Conduct by APS employee or former APS employee |
|
Australian Public Service Commissioner may discontinue inquiry into alleged breach of Code of Conduct by an APS employee or a former APS employee |
6.5 |
53 |
Circumstances in which Australian Public Service Commissioner may discontinue inquiry |
|
New provision |
- |
57 |
Delivery of learning and development programs on request to Commonwealth entities and State or Territory authorities or bodies |
- Compellability of entrusted persons to give evidence |
6.6 6.7 |
99 |
Australian Public Service Commissioner’s functions etc. |
|
Compellability of entrusted persons to give evidence |
6.6 6.7 |
99 |
Australian Public Service Commissioner’s functions etc. |
|
Giving information or producing documents |
6.8 |
101 |
Giving information or producing documents to Australian Public Service Commissioner not admissible in evidence etc. |
|
Immunity from civil proceedings |
6.9 |
106 |
Immunity from civil proceedings in relation to Australian Public Service Commissioner’s functions |
|
Prescribed functions (Act s 50) |
7.1 |
59 |
Purpose of this Division |
|
Merit Protection Commissioner’s functions – inquiries into public interest disclosures that relate to alleged breaches of the Code of Conduct (Act s50(1)(a)) |
7.1A |
58 |
Inquiries into public interest disclosures that relate to alleged breaches of the Code of Conduct |
|
Investigation of complaints by former employees |
7.2 |
72 |
Investigation of complaints by former employees |
|
Entitlement to review |
7.2A |
73 |
Review by Merit Protection Commissioner if former APS employee is entitled to review |
|
Application for review |
7.2B |
74 |
Application for review |
|
Notice that action not reviewable |
7.2C |
75 |
Notice that action not reviewable |
|
Conduct of review |
7.2D |
76 |
Conduct of review |
|
Action by Agency Head |
7.2DA |
77 |
Action by Agency Head |
|
Review procedures – minimum requirements |
7.2E |
78 |
Review procedures – minimum requirements |
|
Requirement to provide information or documents |
7.2F |
79 |
Requirement to provide information or documents |
|
Making application does not operate as stay |
7.2G |
80 |
Making application does not operate as stay |
|
Offence |
7.2H |
- |
Removed |
|
Review of actions of statutory office holders who are not Agency Heads |
7.3 |
81 |
Review of actions of statutory office holders other than Agency Heads |
|
Other functions of Merit Protection Commissioner |
7.4 |
82 |
Functions of Merit Protection Commissioner on request by relevant employer |
|
Independence of Merit Protection Commissioner |
7.5 |
84 |
Independence of Merit Protection Commissioner |
- Protected Information - Compellability of entrusted persons to give evidence |
7.6 7.7 7.8 |
100 |
Merit Protection Commissioner’s functions etc. |
|
Giving information or producing documents |
7.9 |
102 |
Giving information or producing documents to Merit Protection Commissioner not admissible in evidence etc. |
|
Basic requirements for procedures for determining breach of Code of Conduct by an APS employee or a former APS employee |
7.10 |
83 |
Basic requirements for procedures for determining breach of Code of Conduct by APS employee or former APS employee |
|
Employment conditions after machinery of government changes – movement of APS employees (Act s 72) |
8.1 |
85 |
Employment conditions after machinery of government changes – movement of APS employees |
|
Employment conditions after machinery of government changes – engagement of non-APS employees (Act s 72) |
8.2 |
86 |
Employment conditions after machinery of government changes – engagement of non-APS employees |
|
Prescribed circumstances in relation to employment in former Agency (Act s 72) |
8.3 |
87 |
Prescribed circumstances in relation to employment in former Agency |
|
Application of Part 8A |
8A.2 |
88 |
Application of this Part |
|
Application of State and Territory law |
8A.3 |
89 |
Application of State and Territory law |
|
Paying officer |
8A.4 |
90 |
Paying officer |
|
Authority to make deductions |
8A.5 |
91 |
Authority to make deductions |
|
Administration fee |
8A.6 |
92 |
Administration fee |
|
More than 1 judgment debt |
8A.7 |
93 |
More than one judgment debt |
|
Effect of deductions |
8A.8 |
94 |
Effect of deductions |
|
Rate of deductions |
8A.9 |
95 |
Rate of deductions |
|
Move to another Agency |
8A.10 |
96 |
Move to another Agency |
|
Administration of deductions |
8A.11 |
97 |
Administration of deductions |
|
Recovery of overpayment |
8A.12 |
98 |
Recovery of overpayment |
|
Use and disclosure of personal information (Act s 72E) |
9.2 |
103 |
Use and disclosure of personal information |
|
Delegations |
9.3 |
105 |
Delegations |
|
Payments in special circumstances (Act s 73) |
9.4 |
104 |
Maximum amount of payments in special circumstances |