Federal Register of Legislation - Australian Government

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SR 1999 No. 301 Regulations as made
Principal Regulations
Administered by: Prime Minister and Cabinet
General Comments: This instrument was backcaptured in accordance with Section 36 of the Legislative Instruments Act 2003
Registered 01 Jan 2005
Tabling HistoryDate
Tabled HR15-Feb-2000
Tabled Senate15-Feb-2000
Gazetted 04 Dec 1999
Date of repeal 01 Jul 2013
Repealed by Repeal of the enabling legislation by Public Service Amendment Act 2013

Public Employment (Consequential and Transitional) Regulations 1999 1999 No. 301

EXPLANATORY STATEMENT

Statutory Rules 1999 No. 301

Issued by the authority of the Prime Minister

Public Employment (Consequential and Transitional) Amendment Act 1999

Public Employment (Consequential and Transitional) Amendment Regulations 1999

The Public Employment (Consequential and Transitional) Amendment Act 1999 received the Royal Assent on 11 November 1999. It commenced on 5 December 1999, being the same date as the Public Service Act 1999 was proclaimed to commence (the commencing time').

The Public Service Act 1922 and the Merit Protection (Australian Government Employees) Act 1984 were repealed with effect from 5 December 1999 also, on the commencement on that date of the Public Employment (Consequential and Transitional) Amendment Act 1999 - items 754 and 606 of Schedule 1 of that Act refer, respectively.

The Public Employment (Consequential and Transitional) Amendment Act 1999 (hereafter 'the Act') deals with the consequential and transitional matters arising from the repeal of the Public Service Act 1922 ('the old Act') and the Merit Protection (Australian Government Employees) Act 1984 (the Merit Protection Act') and the enactment of replacement legislation, namely the Public Service Act 1999 ('the new Act').

Subsection 14(1) of the Act provides that the Governor-General may make regulations prescribing matters:

(a)       required or permitted by that Act to be prescribed; or

(b)       necessary or convenient to be prescribed for carrying out or giving effect to that Act.

Subsection 14(3) of the Act provides that regulations may be made:

(a)       in relation to the continuation of the following things under the old Act or the Merit Protection Act, and their effects under the new Act:

(i)       processes relating to appointment, re-instatement, transfer, promotion, advancement, classification or retirement;

(ii)       inquiries into pre-commencement misconduct for which a person was charged under the old Act before the commencing time;

(iii)       appeals against disciplinary directions;

(iv)       the performance of functions under Subdivision FA. of Division 2 of Part II of the Merit Protection Act.,

(v)       the review of decisions under Division 3 of Part II of the Merit Protection Act;

(vi)       the investigation of grievances under Division 4 of Part II of the Merit Protection Act; and

(b)       in relation to the continuation under the new Act of suspensions that were in force under the old Act immediately before the commencing time; and

(c)       in relation to:

(i)       the review of decisions made under the old Act before the commencing time; and

(ii)       the effects, under the new Act, of those reviews; and

(iii)       the powers available to a person or body conducting such a review; and

(d)       providing for the powers available to a person conducting a review referred to in paragraph (c); and

(e)       in relation to arrangements, agreements and other things under Division 9 of Part III of the old Act; and

(f)       for other matters of a transitional or saving nature arising from:

(i)       the repeal of the old Act or the Merit Protection Act; or

(ii)       the transition from the old Act to the new Act;

including such matters arising from the amendments made by a Schedule to the Act or from amendments made by regulations under section 14 of the Act.

Subsection 14(4) of the Act provides that regulations made under subsection 14(3) of the Act:

(a)       may provide for the old Act or the Merit Protection Act to continue in force for the purposes of the regulations, even though those Acts are repealed by the Act; and

(b)       prevail over the old Act, the new Act, the Merit Protection Act and section 13 of the Act, to the extent of any inconsistency.

Subsection 14(5) of the Act provides that the regulations may:

(a)       amend other Acts, by making amendments of a kind that are consequential on the repeal of the old Act and its replacement by the new Act; and

(b)       make provision of a transitional or saving nature in relation to amendments made under paragraph (a).

Subsection 14(6) of the Act provides that, for the purposes of the Amendments Incorporation Act 1905, amendments made by regulations under paragraph 14(5)(a) of the Act are to be treated as if they had been made by an Act.


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Subsection 14(7) of the Act provides that regulations made under section 14 of the Act within one year after the commencement of section 14 may commence on a day earlier than the day on which they are made, but not earlier than the commencement of section 14.

Subsection 7(1) of the Act provides that a 'second-tier person' under the old Act, as defined in section 4 of the Act, is entitled to be engaged as an APS employee, in accordance with the regulations, within the time limits prescribed by the regulations. Subsection 7(2) of the Act provides that regulations made for the purpose of subsection 7(1) may prescribe exceptions to the entitlement.

Section 8 of the Act provides that Division 8A of Part III of the old Act, dealing with the redeployment and retirement of Secretaries, continues to apply (as if the old Act had not been repealed) to a person who was an unattached Secretary under the old Act immediately before the commencing time, subject to any modifications prescribed by the regulations.

Subsection 12(1) of the Act provides that the Parliamentary Departments continue in existence, and the old Act, the Merit Protection Act and other Acts continue to apply in relation to those Departments as if the old Act and the Merit Protection Act had not been repealed. Subsection 12(3) of the Act provides that section 12 of the Act has effect subject to any modifications prescribed by the regulations.

Purpose and Scope of Regulations

Following the establishment under the new Act of the new regulatory framework for the people management of agencies of the Australian Public Service (APS), certain provisions are necessary from the commencing time to:

*       validate actions and decisions taken under the old Act and the Merit Protection Act;

*       cover some aspects of the transition from the old to the new employment framework; and

*       make consequential amendments to other legislation which incorporates references to the old Act framework.

The details of changes for these purposes are set out in the Attachment.

The Regulations commenced on 5 December 1999.

ATTACHMENT

Part 1 of the Regulations deals with certain preliminary matters.

Regulation 1.1 provides that the name of the Regulations is the Public Employment (Consequential and Transitional) Regulations 1999.

Regulation 1.2 of the Regulations provides that these Regulations commence on the commencement of the Public Employment (Consequential and Transitional) Amendment Act 1999 (the Act).

Regulation 1.3 of the Regulations provides that the dictionary at the end of these Regulations defines certain words and expressions. Subregulation (2) provides that the dictionary includes certain words and expressions that are defined in section 2 or 4 of the Act. Subregulation (3) provides that these words and expressions have the same meaning in these Regulations as they are given by sections 2 or 4 of the Act. Subregulation (4) provides that a definition in these Regulations applies to each use of the word or expression in these Regulations unless the contrary intention appears.

Part 2 of the Regulations deals with transitional provisions relating to the application of the old Act, other than Part IV.

Regulation 2.1 of the Regulations deals with transitional arrangements for the classification of APS employees.

This -regulation provides that the classification a person held under the old Act equates clearly with a classification set out in the Classification Rules made under section 23 of the new Act.

Regulation 2.2 of the Regulations deals with appointments approved before the commencing time but which have not come into effect.

This regulation provides that, where the appointment of a person to the APS under section 42 of the old Act has not taken effect at the commencing time, that person is taken to be engaged as an ongoing APS employee under paragraph 22(2)(a) of the new Act at the stated time of effect in the instrument for the appointment. However, where such an appointment is subject to a determination made under section 44 of the old Act in relation to the appointment of a person as a Senior Executive Service officer, the person is taken to be engaged as an APS employee under paragraph 22(2)(b) of the new Act at the time stated in the determination for the appointment to take effect.

Regulation 2.3 of the Regulations deals with appointments approved before the commencing time under certain other enactments but which have not come into effect.

The APS has reciprocal mobility arrangements with three non-APS Commonwealth organisations - the Albury-Wodonga Development Corporation, the Australian Trade Commission, the Australian Security Intelligence Organization - which are authorised in the enabling legislation of these organisations. The APS also has reciprocal mobility arrangements with the Australian Capital Territory Public Service, which are set out in the Australian Capital Territory Government Service (Consequential Provisions) Act 1994.

This regulation provides that, where the appointment of a person from one of these organisations to the APS was made before commencing time but has not taken effect, the person is taken to be engaged as an ongoing APS employee under paragraph 22(2)(a) of the new Act:


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*       at the time the appointment would have taken effect under the relevant reciprocal mobility arrangement; and

*       subject to the same conditions that would have applied to the appointment had it been completed under the relevant reciprocal mobility arrangement.

Where such an appointment could not have been made on probation in accordance with the relevant reciprocal mobility provisions, the engagement of the person cannot be made subject to a condition that the person is on probation.

Regulation 2.4 of the Regulations deals with the preservation of certain elements of SES selection processes whereby the Public Service Commissioner had, before the commencing time, given in-principle agreement to an SES appointment but an appointment instrument had not been signed.

This regulation provides that, if a person has been selected for appointment to the APS under section 42 of the old Act as a Senior Executive Service (SES) officer, or selected for appointment under sections 42 and 44 of the old Act as a fixed-term SES officer, but the instrument appointing the person has not been made, that person is taken to have been selected for engagement as an APS employee, in compliance with the requirements of the new Act and the Commissioner's Directions.

The Agency Head may engage the person as an APS employee under paragraph 22(2)(a) or 22(2)(b) of the Act, as the case may be, and the engagement may be made subject to conditions notified to the employee under subsection 22(6) of the new Act.

Regulation 2.5 of the Regulations deals with the preservation of certain elements of selection processes which started before the commencing time but for which a formal decision had not been made to engage, appoint, promote or transfer.

This regulation provides that, where an employment opportunity has been notified in the Commonwealth Gazette before the commencing time, any selection processes, including notifications of related eligibility requirements made under s33A of the old Act, will continue to apply for 12 months after the employment opportunity was notified in the Gazette.

Regulation 2.6 of the Regulations deals with re-appointments approved before the commencing time but which have not come into effect.

This regulation provides that, if before the commencing time, an instrument has been made reappointing a person to the APS under section 47B or section 47C of the old Act, and the reappointment has not taken effect, that person is taken to be engaged as an ongoing APS employee under paragraph 22(2)(a) of the new Act at the time stated in the instrument for the reappointment to take effect.

Regulation 2.7 of the Regulations deals with the situation where a decision has already been taken to terminate a person's appointment but the decision has not yet come onto effect.

The regulation provides that if, before the commencing time, a decision had been made to terminate a person's appointment under section 47 of the old Act but the decision had not yet taken effect, the relevant provisions of the old Act continue in force to allow for the termination of the person's appointment.

Regulation 2.8 of the Regulations deals with the situation of persons who, immediately before the commencing time, were on probation (other than those persons dealt with in regulation 2.7 above) and persons who are taken to be engaged as an ongoing employee under subregulation 2.2(2) or 2.3(2), provided that such an appointment was to be a probationary appointment.

This regulation provides that, the conditions applying to a person's probationary appointment are taken to be the conditions applying to the person's engagement under subsection 22(6) of the new Act and the person is taken to be notified of the conditions for the purposes of that subsection.

The old Act, the old Regulations and any other applicable instruments under the old Act continue in force for the purposes of determining whether a person covered by this regulation satisfies the conditions of employment.

The conditions that apply to the person's engagement by virtue of this regulation are conditions for the purposes of terminating the person's employment under paragraph 29(3)(f) of the new Act.

Regulation 2.9 of the Regulations deals with transfers approved before the commencing time but which have not come into effect.

This regulation provides that, if before commencing time an instrument transferring a person to a vacant office under sections 49 or 50 of the old Act had been made but the transfer had not taken effect, any relevant provisions of the old Act and old Regulations continue in force in relation to the transfer.

If a transfer would have taken effect under the old Act after the completion of any of the relevant matters under provisions of the old Act and the old Regulations and the transfer is between APS agencies, the requirements under sections 25 and 26 of the new Act are deemed to have been met.

If a transfer would have taken effect under the old Act after the completion of any of the relevant matters under provisions of the old Act and the old Regulations and the transfer is within an APS agency, the requirements under section 25 of the new Act are deemed to have been met.

In each case, the transfer takes effect at the time the transfer would have taken effect under the old Act and old Regulations.


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Regulation 2.10 of the Regulations deals with promotions approved before the commencing time but which have not come into effect.

This regulation provides that, if before commencing time an instrument promoting a person to a vacant office under section 49B or 50 of the old Act had been made but the promotion had not taken effect, any relevant provisions of the old Act and old Regulations, including appeal and review rights, continue in force in relation to the promotion.

If a transfer* or promotion would have taken effect under the old Act after the completion of any of the relevant provisions of the old Act and old Regulations and the transfer or promotion is between APS agencies, the requirements under sections 25 and 26 of the new Act are deemed to have been met.

*Note: Under the old Act, certain persons at the same classification level as the position being filled can appeal against the promotion of a person to that position - see section 50H of that Act. Therefore, this regulation has been drafted to allow for the possibility of a transferee displacing a promotee as the result of an appeal process.

If a transfer or promotion would have taken effect under the old Act after the completion of any of the relevant provisions of the old Act and old Regulations and the transfer or promotion is within an APS agency, the requirements under section 25 of the new Act are deemed to have been met.

In each case, the transfer or promotion takes effect at the time the transfer or promotion would have taken effect under the old Act and old Regulations.

Regulation 2.11 of the Regulations deals with the preservation of Joint Selection Committee (JSC) arrangements where a written request has been made to the Merit Protection Agency to establish a JSC or a vacancy has been notified in the Commonwealth Gazette as to be filled using a JSC.

This regulation provides that if, before commencing time, a Secretary has arranged for the establishment of a JSC under paragraph 50DA(4)(d) or 50DB(3)(c) of the old Act, or a vacancy has been notified in the Commonwealth Gazette under paragraph 50DA(4)(c) or 50DB(3)(a) of the old Act, then the old Act continues for the purposes of filling the vacancy.

This regulation further provides that, if a transfer or promotion would have taken effect under the old Act after the completion of any of the relevant provisions of the old Act and old Regulations and the transfer or promotion is between APS agencies, the requirements under section 25 and 26 of the new Act are deemed to have been met.

If a transfer or promotion would have taken effect under the old Act after the completion of any of the relevant matters under provisions of the old Act and old Regulations and the transfer or promotion is within an APS agency, the requirements under section 25 of the new Act are deemed to have been met.

In each case, the transfer or promotion takes effect at the time the transfer or promotion would have taken effect under the old Act and the old Regulations.

Regulation 2.12 of the Regulations deals with transitional arrangements for the preservation of remuneration and terms and conditions of employment of Secretaries of Departments.

This regulation provides that, in relation to a person who is taken under subsection 5(1) of the Act to be appointed as a Secretary under the new Act, and until a determination is made under section 61 of the new Act, the appointment is taken to be subject to the same terms and conditions of employment as applied to the person's appointment under the old Act, including those provided for under Remuneration Tribunal Determination 1999/04.

Regulation 2.13 of the Regulations deals with transitional arrangements for a person holding an appointment as an acting Secretary.

This regulation provides that, in relation to a person who, at commencing time, holds an appointment as an acting Secretary under paragraphs 39(1)(a), (b) or (c) of the old Act, the person is taken to be appointed under section 62 of the new Act on the terms that applied to the appointment immediately before the commencing time under the old Act.

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Regulation 2.14 of the Regulations deals with transitional arrangements for the preservation of remuneration and terms and conditions of employment of the Public Service Commissioner.

This regulation provides that, in relation to a person who is taken under subsection 5(2) of the Act to be appointed as the Public Service Commissioner under the new Act, and until a determination is made under section 46 of the new Act, the appointment is taken to be subject to the same terms and conditions of employment as applied to the person's appointment under the old Act, including those provided for under Remuneration Tribunal Determination 1999/04. In addition, subsection 11(6) of the old Act continues to apply to the person.

Regulation 2.15 of the Regulations deals with transitional arrangements for the Public Service Commissioner's reporting requirements.

This regulation provides that the Public Service Commissioner's report under section 44 of the new Act for the financial year ending 30 June 2000, must include a report on the activities of the Commissioner under the old Act from 1 July 1999 until the commencing time and a report in accordance with subregulation 12(2) of the old Regulations on the state of the APS during the same period.

Regulation 2.16 of the Regulations deals with transitional arrangements for SES

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temporary performance directions under Regulation 108 of the old Regulations.

This regulation provides that, if a temporary performance direction under regulation 108 has been made before the commencement time and the direction has not expired, then the temporary performance direction is deemed to be a temporary assignment made under section 25 of the new Act.

If the temporary performance direction was issued to an officer in another agency, the Agency Head is taken to have:

*       entered into an agreement with the employee to move to the agency as required under section 26 of the new Act with the same date of effect and expiry date as the original direction; and

*       assigned duties to the employee under section 25 of the new Act and determined that the assigned duties will be performed in the same location.

The regulation provides that the Agency Head of the agency in which the person was performing duties prior to the employee being given the direction, is taken to have entered into an agreement with the employee to move back to that agency on completion of the term of the direction. The regulation also provides that the requirements under section 26 of the new Act for the agreement to be in writing and for the employee to notify their current Agency Head of entering into an agreement (see regulation 3.9 of the new Regulations) do not apply.

If the temporary performance direction was given by the Agency Head to an officer in that Agency, the regulation provides that the Agency Head is taken to have assigned duties on a temporary basis to the person under section 25 of the new Act with the same date of effect and expiry date as the original direction and determined that the assigned duties will be performed in the same location.

Those parts of this regulation which deem assignment, and movement where relevant, only apply for the remaining period of the temporary performance direction.

Regulation 2.17 of the Regulations deals with transitional arrangements for non-SES temporary performance directions which are not subject to appeal under regulation 116B of the old Regulations.

This regulation provides that if a temporary performance direction that is not subject to an appeal right under Regulation 116B has been made before the commencement time and the direction has not expired, then the temporary performance direction is deemed to be a temporary assignment made under section 25 of the new Act.

If the temporary performance direction was issued to an officer in another agency, the Agency Head is taken to have:

*       entered into an agreement with the employee to move to the agency as required under section 26 of the new Act with the same date of effect and expiry date as the original direction; and

*       assigned duties to the employee under section 25 of the new Act and determined that the assigned duties will be performed in the same location.

The regulation provides that the Agency Head of the agency in which the person was performing duties prior to the employee being given the direction, is taken to have entered into an agreement with the employee to move back to that agency on completion of the term of the direction. The regulation also provides that the requirements under section 26 of the new Act for the agreement to be in writing and for the employee to notify their current Agency Head of entering into an agreement (see regulation 3.9 of the new Regulations) do not apply.

If the temporary performance direction was given by the Agency Head to an officer in the same agency, the regulation provides that the Agency Head is taken to have assigned duties on a temporary basis to the person under section 25 of the new Act with the same date of effect and expiry date as the original direction and determined that the assigned duties will be performed in the same location.

Those parts of this regulation which deem assignment, and movement where relevant, only apply for the remaining period of the temporary performance direction.

Regulation 2.18 of the Regulations deals with transitional arrangements for non-SES temporary performance directions which are subject to appeal under regulation 116B of the old Regulations.

This regulation applies if a person was given a direction to perform temporarily the duties of a higher office and the period of effect of the direction has not ended. The regulation also provides that if the direction was notified in accordance with regulation 116B 14 days or less before the commencement time, then those parts of regulations 116, 116C, 116D and 116E relevant to the appeal process continue to apply to the direction.

If the temporary performance direction was issued to an officer in another agency, the Agency Head is taken to have:

*       entered into an agreement with the employee to move to the agency as required under section 26 of the new Act with the same date of effect and expiry date as the original direction; and

*       assigned duties to the employee under section 25 of the new Act and determined that the assigned duties will be performed in the same location.

The regulation provides that the Agency Head of the agency in which the person was performing duties prior to the employee being given the direction, is taken

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to have entered into an agreement with the employee to move back to that agency on completion of the term of the direction. The regulation also provides that the requirements under section 26 of the new Act for the agreement to be in writing and for the employee to notify their current Agency Head of entering into an agreement (see regulation 3.9 of the new Regulations) do not apply.

If the temporary performance direction was given by the Agency Head to an officer in the same agency, the regulation provides that the Agency Head is taken to have assigned duties on a temporary basis to the person under section 25 of the new Act with the same date of effect and expiry date as the original direction and determined that the assigned duties will be performed in the same location.

Those parts of this regulation which deem assignment, and movement where relevant, only apply for the remaining period of the temporary performance direction.

The regulation also provides that should an appeal under regulation 1 16E be successful, the new direction issued under paragraph 116E(1)(b) will be considered in the same way as if it had been a temporary performance direction not subject to appeal given before the commencement date.

Regulation 2.19 of the regulations provides that if, immediately before the commencing time, an officer or employee had been charged with pre-commencement misconduct; and the charge had not been finally determined, then the old Act and the old Regulations continue to apply in relation to the pre-commencement conduct.

A charge laid under the old Act will be considered to be finally determined when a decision, direction, finding or recommendation made, or action taken in respect of the charge is not, or is no longer, subject to any form of appeal or review. This refers to either the appeal or review being conducted and the recommendations being implemented or the period within which such an appeal or review could be instituted has ended without an appeal or review having been instituted.

Regulation 2.20 of the Regulations provides that if, immediately before the commencing time, an officer or employee had been convicted by a court of a criminal offence or found, without recording a conviction, that the officer or employee had committed the offence and the relevant Secretary had given the officer or employee an opportunity to furnish a statement in relation to the offence, then the old Act and the old Regulations continue to apply in relation to the conviction by the court.

Regulation 2.21 of the Regulations provides for the continuation of suspension action taken under the old Act if an officer or employee was suspended under the old Act before the commencing time and the suspension was in force immediately before the commencing time.

If the officer or employee was charged with misconduct under the old Act, then relevant sections of the old Act and the old Regulations continue to apply until the end of the period of the suspension.

If the officer or employee was suspended without being charged with misconduct under the old Act, the suspension is taken to be a suspension under the new Regulations.

Regulation 2.22 of the Regulations deals with transitional arrangements for powers delegated under the old Act.

This regulation provides that where a power or function was delegated to a person before the commencement date under subsection 18(1), 18(3) or 26(1) of the old Act, or regulation 160 of the old Regulations, and the delegation was in force immediately before the commencing time, then the delegation continues in force with respect to any exercise of the power, or performance of the function by the person under the old Act that was started but not completed before the commencing time, and that relates to a provision of the old Act or old Regulations that continues to apply, or have effect, because of a provision of these Regulations.

Where such a delegation made under the old Act or old Regulations was expressed to have effect for a specified period, then it continues in force with respect to any exercise of the power, or performance of the function by the person under the old Act or old Regulations that was started but not completed before the commencing time, and that relates to a provision of the old Act or old Regulations that continues to apply, or have effect, because of a provision of these Regulations, until the end of that period.

Regulation 2.23 of the Regulations deals with any directions in place in relation to certain delegations preserved under the preceding regulation.

This regulation provides that where:

*       a person was given a direction under subsection 18(8) or 26(3A) of the old Act with respect to the exercise of a power, or the performance of a function; or

*       a person gave a direction to a sub-delegate of the person under paragraph 18(8)(b) of the old Act with respect to the exercise of a power or the performance of a function;

and the direction was in place immediately before the commencing time, the direction continues in force with respect to the exercise of a power or the performance of a function by the person under the old Act or the old Regulations that was started but not completed before the commencing time, and that relates to a provision of the old Act or old Regulations that continues to apply, or have effect, because of a provision of these Regulations.


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Regulation 2.24 of the Regulations deals with superannuation benefits for persons appointed to the SES on a fixed term basis.

This regulation provides that, where a determination was made under section 45 of the old Act in relation to the provision of superannuation benefits to a fixed-term SES officer, and the determination was in force immediately before the commencing time, the determination continues in force for the duration of the fixed-term appointment.

Regulation 2.25 of the Regulations deals with the preservation of action taken before

commencing time in relation to forfeiture of office and forfeiture of employment.

This regulation provides that:

*       where a notice was issued to an officer under section 66A of the old Act, or to an employee or a continuing employee under section 82AJ of the old Act, about the possibility of the person being deemed to have retired from the Service after an officer or employee had been absent without permission for a continuous period of not less than four weeks; and

*       immediately before the commencing time, the notice was still in force and the person was still an officer, or an employee or a continuing employee as the case may be

then the notice continues in force after the officer or employee becomes an APS employee (under section 5 of the Act) and the relevant section of the old Act continues to apply in relation to the notice and the APS employee until the notice is revoked or the APS employee ceases to be an APS employee.

Regulation 2.26 of the Regulations deals with the preservation of review proceedings started before commencing time in relation to forfeiture of office and forfeiture of employment.

This regulation provides that if an application is made under section 66B or 82AK of the old Act, and review proceedings (including any appeal proceedings) have not been completed before the commencing time, then those sections continue to apply to those proceedings until they are completed.

Regulation 2.27 of the Regulations deals with SES retirements approved before the commencing time but which have not come into effect. This -regulation provides that:

*       where a notice under section 76R of the old Act was issued to an SES officer to the effect that if the officer retires from the Service within the period specified in the notice, the officer will be entitled to a specified benefit; and

*       immediately before the commencing time notice was still in force and the officer was still an officer;

then the notice continues in force after the SES officer becomes an SES employee and section 76R of the old Act continues to apply in relation to the notice and the SES employee until the end of the period specified in the notice, or the SES employee ceases to be an SES employee or where the individual or agency decides that the retirement will not proceed.

Regulation 2.28 of the Regulations deals with transitional arrangements for the reduction of a non-SES officer's classification under section 76W of the old Act.

This regulation provides that where a notice was issued to a person under section 76W of the old Act reducing the person's classification and, immediately before the commencing time, the notice was still in force and the person's classification had not been reduced, the notice continues in force after the time the person becomes an APS employee.

Any relevant provisions of the old Act and old Regulations continue to apply in relation to the notice and the person.

If, as a result of these processes, the person's classification is reduced, the Agency Head of the agency in which the person is employed is taken to have determined the duties of the person as duties with a classification corresponding to an office of the reduced classification, determined the place at which those duties are to be performed and assigned the duties to the person.

If, as a result of these processes, the person's classification is not reduced, the notice ceases to have effect.

Regulation 2.29 of the Regulations deals with the preservation of arrangements which have already commenced relating to the retirement of non-SES officers.

This regulation provides that where a notice to retire an officer from the Service was issued under section 76W of the old Act and immediately before the commencing time, the notice had not been revoked and the officer had not been retired, the notice continues in force after the person becomes an APS employee.

Any relevant provisions of the old Act and old Regulations continue to apply in relation to the notice and the person until the end of the period specified in the notice or the person ceases to be an APS employee.

Regulation 2.30 of the Regulations deals with transitional provisions for arrangement between the Commonwealth and the States or Territories for APS officers and State or Territory officers to be employed under reciprocal services arrangements.

This regulation provides that any arrangement, agreement or authorisation under Division 9 of Part III of the old Act, which was in force immediately before the commencing time, continues in force to the extent necessary.


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Regulation 2.31 of the Regulations deals with the preservation of determinations of special terms and conditions of employment made as a result of a transfer of function.

This regulation provides that a determination made under subsection 81B(5) or 81C(3) of the old Act, which was in force immediately before the commencing time, continues in force and that the relevant subsection of the old Act is deemed to continue in force in relation to the determination.

Regulation 2.32 of the Regulations deals with engagements of continuing employees which were approved before the commencing time but which have not come into effect and with action that has commenced to engage such an employee but no instrument of engagement has been signed on behalf of the Department.

This regulation provides that, if before commencing time, an instrument engaging a person under section 82AC of the old Act had been made but the engagement had not taken effect, the person is taken to be engaged as an ongoing APS employee under paragraph 22(2)(a) of the new Act on the date specified in the instrument of engagement.

The regulation also provides that where, before the commencement time, action was taken to engage a person as a continuing employee under section 82AC of the old Act but an instrument of engagement had not been signed prior to the commencing time, the action is taken to meet the requirements of Chapter 4.2 of the Commissioner's Directions provided the person is engaged within 12 months of the commencement of the action in relation to the engagement.

Regulation 2.33 of the Regulations deals with the engagement of a person as an employee under section 82AD, 82AE or 82AG of the old Act which was approved before the commencing time but which has not come into effect and with action that has commenced to engage an employee under these sections of the old Act but no instrument of engagement has been signed on behalf of the Department.

This regulation provides that, if before commencing time, an instrument engaging a person under either section 82AD, 82AE or 82AG of the old Act had been made but the engagement had not taken effect, the person is taken to be engaged as an APS employee under paragraph 22(2)(b) of the new Act on the date specified in the instrument of engagement and for the period specified in the instrument of

engagement.

The regulation also provides that where, before the commencement time, action was taken to engage a person as an employee under section 82AD, 82AE or 82AG of the old Act but an instrument of engagement had not been signed prior to the commencing time, the action is taken to meet the requirements of Chapter 4.3 of the Commissioner's Directions provided the person is engaged within 12 months of the commencement of the action in relation to the engagement.

Regulation 2.34 of the Regulations deals with the preservation of arrangements which have already commenced relating to the termination of temporary employment of employees under the old Act.

This regulation provides that, where an instrument of retirement to give effect to the termination of an employee's employment under section 82AH of the old Act was signed before the commencing time but the termination of the employment had not taken effect, the person's employment is terminated under section 82AH of the old Act on the specified date of effect.

Regulation 2.35 of the Regulations provides for the continuation of SE S short-term and fixed term engagements approved under the old Act.

This regulation provides that a person who, immediately before the commencing time, was an SES officer engaged under section 82AE or section 82AD of the old Act will, at the commencing time, become an SES employee in the corresponding agency and with a corresponding classification as if he or she had been engaged under the new Act as an SES employee for a period equal to the unexpired part of the term of the engagement under the old Act.

Regulation 2.36 of the Regulations deals with the requirement to notify certain staffing actions in the Commonwealth Gazette.

This regulation provides an ongoing requirement to notify the following actions in the Commonwealth Gazette, where notification was not published before commencing time:

*       appointment, promotion, transfer, retirement, and dismissal as mentioned in subsection 92(2) of the old Act; and

*       a transfer mentioned in regulation 106D of the old Regulations.

Regulation 2.37 of the Regulations deals with the continuing authority for certain payments authorised under subsection 90(3) of the old Act.

This regulation provides that any such payment which was to be made after commencing time is taken to be authorised under section 73 of the new Act.

Regulation 2.38 of the Regulations deals with references to provisions of the old Act which are included in an Award, Certified Agreement (CA) or Australian Workplace Agreement (AWA).

The regulation provides that where an award, CA or AWA which is in force at the commencing time in relation to an APS employee contains a provision that refers to a provision of the old Act or old Regulations to which a provision of the new Act or Regulations corresponds, the reference to the particular provision in the Award, CA or AWA is to be read as including a reference to the corresponding provision of the new Act or new Regulations.

In addition, a provision of the award, CA or AWA is to be read in a way that is consistent with, and promotes the transition from the old Act and Regulations

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to the new Act and Regulations.

Regulation 2.39 of the Regulations deals specifically with Determination 162 of 1994, a determination made under section 82D of the old Act.

Section 9 of the Act continues determinations made under section 82D of the old Act in force for a period of three years from the commencing time. Section 4 of the Act allows for amendments to any of these determinations to be prescribed by regulations made under the Act. This regulation amends Determination 162 of 1994 to the extent that the provisions of the determination will apply to an Agency only to the extent that it is capable of doing so.

Regulation 2.40 of the Regulations provides that if, before the commencing time an amount was deducted from salary to satisfy a judgment debt and an amount remains owing on the judgment debt at commencement, the provisions of the old Act continue to apply until the remaining balance of the judgment debt is satisfied.

Regulation 2.41 of the Regulations provides that if, before the commencing time, an amount was being deducted from salary to pay a pecuniary penalty, and an amount remains owing on the penalty at commencement, the old provisions continue to apply until the remaining balance of the pecuniary penalty is paid.

Regulation 2.42 of the Regulations provides that if, before the commencing time, an APS employee had made a report under the old Regulations of a breach, or an alleged breach, of the Code of Conduct and the report had not been finally dealt with, the old Regulations concerning protection for whistleblowers and procedures for dealing with the reports continue to apply in relation to the report.

Regulation 2.43 of the Regulations provides that, where an officer or employee had been given a written notice, prior to the commencing time, to submit to a medical examination and the officer or employee had not attended for a medical examination by the commencing time, then the relevant provisions of the old Regulations continue in relation to the medical examination.

Part 3 of the Regulations deals with transitional provisions relating to rights under Part IV of the old Act.

Division 3.1 deals with first-tier persons.

Subdivision 3.1.1 sets out the general rights of first-tier persons.

Regulation 3.1 of the Regulations sets out the mobility rights of first-tier persons in accordance with section 6 of the Act and these Regulations. The regulation makes it clear that a person has no other rights under Division 2 of Part IV of the old Act after the commencing time.

Subdivision 3.1.2 deals with the end of first-tier status.

Regulation 3.2 of the Regulations deals with various circumstances in which a firsttier person's coverage under section 6 the Act would cease, including at the end of the transitional period.

Subdivision 3.1.3 deals with leave entitlements.

Regulation 3.3 of the Regulations ensures that a person who becomes a first-tier person covered by section 6 the Act at commencing time retains all accrued recreation leave credits and sick leave credits that the person had immediately before the commencing time.

Subdivision 3.1.4 deals with a person's return to the APS while they are a first-tier person.

Regulation 3.4 of the Regulations specifies that for the purposes of the definition of transitional period in section 4 of the Act, the period of three years is prescribed as the transitional period.

Regulation 3.5 of the Regulations deals with a first-tier person's right to return to the APS at any time while the person is a first-tier person. The regulation specifies that the person is required to apply in writing to the Agency Head of their former Agency. The Agency Head is required to make arrangements for the person to return to the Agency, and resume duties at the person's former APS classification, unless the person has ceased or will cease first-tier employment because they have or will reach the maximum age applicable in that first-tier employment.

Division 3.2 deals with second-tier persons.

Subdivision 3.2.1 sets out the general rights of second-tier persons.

Regulation 3.6 of the Regulations sets out the mobility rights of second-tier persons in accordance with section 7 of the Act and these Regulations. The regulation makes it clear that a person has no other rights under Division 3 of the old Act after the commencing time. The regulation also specifies that a first-person who resigns from the APS, or is taken to have resigned, before the end of the transition period does not become a second-tier person.

Subdivision 3.2.2 deals with the end of second-tier status.

Regulation 3.7 of the Regulations deals with various circumstances in which a second-tier person's coverage under section 7 the Act would cease, including at the end of the transitional period.

Subdivision 3.2.3 deals with a second-tier person's ability to return to the APS in certain circumstances.

Regulation 3.8 of the Regulations provides an introduction to the provisions contained in regulation 3.9, 33.10, 3.11 and 3.12 dealing with the entitlement of second-tier persons to apply to the Agency Head of their former Agency for re-engagement into the APS under certain prescribed circumstances.

Regulation 19 of the Regulations specifies that the time limit in which a second-tier person is entitled to be re-engaged under the prescribed

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circumstances outlined in this Subdivision is three years, starting at the commencing time.

Regulation 3.10 of the Regulations specifies that a second-tier person is only entitled to apply to be re-engaged under this Subdivision if the person has been in the same eligible public employment at all times in the period described in 3.9.

Regulation 3.11 of the Regulations specifies the prescribed circumstances in which a secondtier person is able to apply to be re-engaged under this Subdivision. The regulation includes certain exceptions to the entitlement. The prescribed circumstances in which a second-tier person may apply are, if their employment:

*       in a public office is to be, or has been, terminated:

(a) otherwise than on the ground of the person's invalidity; and

(b) before the expiration of the term for which the person was appointed.

*       in a public office has been terminated upon the expiration of the term for which the person was appointed, and the person has not been:

(a) re-appointed, or offered re-appointment, to the office;

(b) appointed, or offered appointment, to another public office; or

(c) employed, or offered employment, by a public authority.

*       by a public authority is to be, or has been, terminated because the person is excess to the authority's requirements.

*       by a public authority is to be, or has been, terminated otherwise than on the ground of the person's invalidity or by reason of the person's resignation.

A second-tier person is also entitled to be considered for engagement as an APS employee if a function previously carried out by the APS has been transferred to a public authority, and:

(a)       the employment that gave him or her the status of second-tier person included functions associated with the transfer; and

(b)       the person's employment still includes those functions; and

(c)       the person's career has been adversely affected because of a reduction in, or an alteration of, the functions or activities of the public authority.

However, a second-tier person is not entitled to be considered for engagement as an APS employee in any of the following circumstances:

(a)       the person's employment by a public authority is to be, or has been, terminated on the ground of the person's invalidity or by reason of the person's resignation;

(b)       the person has received, or become entitled to, the payment of a redundancy benefit from an eligible public employer;

(c)       the person has ceased the employment that gave him or her the status of secondtier person because the person has reached the maximum age for that employment;

(d)       the person is to cease the employment that gave him or her the status of secondtier person because the person will reach the maximum age for that employment;

(e)       the person's employment in a public office or by a public authority was terminated on a ground of misconduct, and the Agency Head is satisfied that the same conduct, if committed in the Agency Head's Agency, would be a ground for termination under subsection 29(3) of the new Act;

Regulation 3.12 of the Regulations specifies how a second-tier person is to apply for re-engagement to the Agency Head of the Agency that corresponds to the Department in which the person last performed duties as an officer in the APS.

The regulation also specifies the respective time limits that apply for each prescribed circumstance in which an application has to be made to the relevant Agency Head.

Regulation 3.13 of the Regulations specifies that an Agency Head is to decide on an application for re-engagement within 28 days after receiving it. Under the regulation an Agency Head must approve the application if the Agency Head is satisfied that the person:

(a)       applied for engagement within the time limit mentioned in regulation 3.9; and

(b)       is entitled to apply for engagement; and

(c)       is entitled to be considered for engagement; and

(d)       applied in accordance with regulation 3.12.

If the Agency Head is not satisfied about 1 or more of the matters in (a), (b), (c) or (d) above, the Agency Head must refuse the application.

The Agency Head must, as soon as practicable, notify the person in writing whether the application has been approved or refused.

The notification must also include the following information:

(a)       the nature of the duties that the person will perform on engagement;

(b)       the classification that the person will have on engagement;


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(c)       the place where the person is to report for duty;

(d)       the day when the person is to report for duty;

(e)       the proposed salary rate applicable to the person.

Regulation 3.14 of the Regulations deals with the effect of an approval by an Agency Head of an application under this Subdivision, if the person reports for duty in accordance with regulation 3.17. An Agency Head, and the Agency, have no liability for any salary, allowances or other remuneration in respect of the person for the period before the person reports for duty.

Regulation 3.15 of the Regulations deals with the Agency Head's responsibility to assign duties to be performed by a second-tier person on return to the APS. The regulation also specifies that if a second-tier person was entitled to be considered for engagement because the person's employment by a public authority was to be, or had been, terminated because the person is excess to the authority's requirements a second-tier person on engagement is to be regarded as excess to the Agency's requirements at the time the person in engaged.

The Agency Head is not required to determine the person's duties in the Agency, for the purposes of section 25 of the new Act, until the Agency Head is satisfied that there is an operational requirement that justifies determining duties.

Regulation 3.16 of the Regulations deals with the treatment of an excess second-tier person on return to the APS, where the Agency Head has not assigned them duties in accordance with section 25 of the new Act, because the Agency Head is not satisfied that there is an operational requirement that justifies determining duties.

For the period during which the person's duties are not determined, the person is subject to the procedures in force in the Agency for dealing with APS employees who are excess to the Agency's requirements subject to the following:

*       If the person:

(a)       was offered a redundancy package, or an arrangement of similar effect, as part of the person's employment by a public authority; and

(b)       declined to accept the offer;

the person is not entitled to be offered a redundancy package, or an arrangement of similar effect, by or on behalf of the Agency Head.

*       The period during which the person was excess to the authority's requirements is to be counted as time during which the person is taken to be excess to the Agency's requirements.

(a)       the period during which the person is taken to be excess to the Agency's requirements is greater than the period allowed under the procedures in force in the Agency for dealing with APS employees who are excess to the Agency's requirements; or

(b)       there is no minimum period for the person to be excess to the Agency's requirements under the procedures;

the Agency Head is entitled to terminate the person's engagement as an APS employee in accordance with section 29 of the new Act and the procedures in force in the Agency.

Regulation 3.17 of the Regulations provides details of the requirement for a secondtier person to report for duty within 28 days after the day on which the person is notified under subregulation 3.13(5) that his or her application for engagement has been approved. A person is not entitled to report for duty until the person has ceased his or her eligible public employment.

If the person:

(a)       ceases his or her eligible public employment; and

(b)       reports for duty within the 28 days;

the person is entitled to be engaged as an ongoing APS employee.

The engagement takes effect as follows:

(a)       the person is taken to have been engaged with effect from the day after the day when the person ceased his or her eligible public employment;

(b)       the person is taken to have been engaged at the classification mentioned in the notification under subregulation 3.13(5);

(c)       the person is taken to have been granted leave without pay for the period:

(i) starting when the person is taken to have been engaged; and

(ii)       ending immediately before the day when the person reports for duty.

The person's entitlement to accrued recreation leave credits and sick leave credits, and to future credits, is to be worked out in accordance with:

(a)       the certified agreement or Australian workplace agreement in force in the Agency; or

(b)       if there is no agreement - a determination by the Agency Head.

The person ceases to be entitled to be engaged as an ongoing APS employee if.

(a)       the person:

(i) does not cease his or her eligible public employment by the end of the 28 days mentioned in subregulation (3); or


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(ii) does not report for duty within the 28 days; and

(b)       the person has not been granted leave by the Agency Head for the period starting after the 28 days.

Subdivision 3.2.4 deals with the ability of first-tier and second-tier persons to return to the APS by applying for an employment opportunity.

Regulation 3.18 of the Regulations specifies that nothing in this Division prevents a first-tier person or second-tier person from applying for engagement in the APS as part of a merit selection process. A person's status as a first-tier or second-tier person is not to have any bearing upon the consideration of the application.

Part 4 of the Regulations deals with transitional provisions relating to the application of the Merit Protection Act.

Regulation 4.1 of the Regulations provides a definition of 'Agency' relating to the use of this term in Part 4.

Regulation 4.2 of the Regulations provides for the continued application of the Merit Protection Act after the commencing time for certain purposes. The Merit Protection (Australian Government Employees) Regulations also continue in force to the extent necessary for the continued operation of the Merit Protection Act under Part 4.

Subregulation 4.2(2) sets out one change to the continued operation of the Merit Protection Act. The Merit Protection Commissioner appointed, or taken to be appointed, under the new Act, or a delegate of the Merit Protection Commissioner, will undertake the functions of the Merit Protection and Review Agency as the Merit Protection Act as it is continued in force. The Merit Protection and Review Agency will not exist after the commencing time.

Subregulation 4.2(3) makes clear that references in Part 4 to the Merit Protection Commissioner, other than subregulation (2), include a reference to a delegate of the Merit Protection Commissioner.

Regulation 4.3 of the Regulations provides for the Merit Protection Act to continue in force to allow for the determination of promotion appeals and appeals relating to temporary performance directions made, but not completed, before the commencing time. The regulation also provides for the determination of promotion appeals and appeals relating to temporary performance directions made after the commencing time under these Regulations.

Regulation 4.4 of the Regulations provides for the Merit Protection Act to continue in force to allow for the determination of disciplinary appeals made, but not completed, before the commencing time. The regulation also provides for the determination of disciplinary appeals made after the commencing time under these Regulations.

Regulation 4.5 of the Regulations provides for the Merit Protection Act to continue in force to allow for the determination of redeployment and retirement appeals made but not completed before the commencing time. The regulation also provides for the determination of redeployment appeals made after the commencing time under these Regulations.

Regulation 4.6 of the Regulations allows the Merit Protection Commissioner to establish Reappointment Review Committees to inquire into and determine applications referred to the Merit Protection Commissioner under Division 3 of Part IV of the old Act. The regulation also allows for the person to be re-appointment under Division 3 of Part IV of the old Act.

Regulation 4.7 of the Regulations allows the Merit Protection Commissioner to establish Reintegration Assessment Committees to inquire into and determine applications made under section 17 or 24 of the Members of Parliament (Staff) Act 1984 before the commencing time.

Subregulation 4.7(3) specifically provides for the determination made in respect of the application to take effect, or to be taken to have taken effect, when the employment to which the application relates terminates, or was terminated, under section 16 and 23 of the Members of Parliament (Staff) Act 1984.

Subregulation 4.7(4) makes clear that former unattached APS officers:

(a)       will be included in the agency which corresponds to the Department that they were included in immediately prior to the commencing time, or if that Department no longer existed immediately before the commencing time, the agency that corresponds to the old Act Department that was responsible immediately before the commencing time for the matter to which the officer's duties related, or mainly related, at the time when the officer last became an unattached officer; and

(b)       will be converted to the classification determined by the RAC as if engaged as an ongoing APS employee under the new Act.

Regulation 4.8 of the Regulations allows the Merit Protection Commissioner to establish Reintegration Assessment Committees to inquire into and determine applications made under section 17 or 24 of the Members of Parliament (Staff) Act 1984 after the commencing time where a person's employment has terminated under section 16 or 23 of the Members of Parliament (Staff) Act 1984 before the commencing time. However, the application must be made before the end of 30 days after the employment is terminated or, if the Merit Protection Commissioner allows a longer period, before the end of the longer period allowed.

Subregulation 4.8(4) specifically provides for the determination made in respect of theapplication to take effect, or to be taken to have taken effect,

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when the employment to which the application relates terminates, or was terminated, under section 16 and 23 ) of the Members of Parliament (Staff) Act 1984.

Subregulation 4.8(5) makes clear that former unattached APS officers:

(a)       will be included in the agency which corresponds to the Department that they were included in immediately prior to the commencing time, or if that Department no longer existed immediately before the commencing time, the agency that corresponds to the old Act Department that was responsible immediately before the commencing time for the matter to which the officer's duties related, or mainly related, at the time when the officer last became an unattached officer; and

(b)       will be converted to the classification determined by the RAC as if engaged as an ongoing APS employee under the new Act.

Regulation 4.9 of the Regulations provides for the Merit Protection Act to continue in force until the end of 4 December 2000 for the determination of any appeals made before or after the commencing time, where an enactment, other than the old Act, has made provision for appeals under section 15 (promotions), 21 (discipline) and 26A (redeployment and retirement) of the Merit Protection Act.

Regulation 4.10 of the Regulations provides that where, before the commencing time, the Merit Protection and Review Agency has received a request to establish a committee under subdivision FA of the Merit Protection Act to undertake functions jointly specified by an Agency Head and a staff organisation, the Merit Protection Commissioner has the discretion to establish the committee and the committee may complete its functions. If, at the commencing time, a committee has been established under subdivision FA of the Merit Protection Act the committee may complete its functions.

Regulation 4.11 of the Regulations provides for the Merit Protection Act to continue in force until the end of 4 December 2000 to allow for a Joint Selection Committee in existence or established after the commencing time to continue in existence and complete its functions.

Regulation 4.12 of the Regulations provides for the Merit Protection Act to continue in force for the review and implementation of a decision under Division 3 of Part II of the Merit Protection Act if an application for review:

(a)       has been made under section 39 of the Merit Protection Act; but

(b)       has not been determined before the commencing time.

Division 3 of Part 11 of the Merit Protection Act relates to the review of certain decisions.

Regulation 4.13 of the Regulations provides for the Merit Protection Act to continue in force for the review and implementation of a decision under Division 3 of Part II of the Merit Protection Act in relation to an application under section 39 of the Merit Protection Act made under these Regulations after the commencing time.

Regulations 4.12 and 4.1 3 preserve, for example, review rights in relation to non-appellable promotions made under the old Act.

Regulation 4.14 of the Regulations provides for the Merit Protection Act to continue in force for the review and implementation of a decision under Division 3 of Part II of the Merit Protection Act until the end of 4 December 2000 if the application is authorised in a way that is not described in regulations 4.12 or 4.13. Under the Merit Protection Act, a review may be authorised by an enactment other than the Merit Protection Act or these Regulations.

Regulation 4.15 of the Regulations allows the completion of the investigation of grievances lodged under the old Regulations. Subregulation (1) and (2) provide for the relevant Agency Head to make and complete an investigation of an action where a request has been made before the commencing time under regulation 83 of the old Regulations. The old Regulations also continue in force to allow the Agency Head or the Merit Protection Commissioner to take any action mentioned in subregulation 83(5), (6) and (7) - these subregulations deal with obtaining progress reports on the conduct of an investigation.

Subregulation (3) and (4) provide for the old Regulations and the Merit Protection Act to continue in force where an application for an investigation has been made under regulation 84 of the old Regulations before the commencing time. The old Regulations and the Merit Protection Act continue in force to allow for any of the following matters:

*       the giving of documents mentioned in subregulation 85(a) and (b) of the old Regulations;

*       the obligation under regulation 86 of the old Regulations to carry out an official direction;

*       the making of a decision by the Merit Protection Commissioner not to investigate, or not to investigate further;

*       the completion of the investigation and the making of a report under Division 4 of Part II of the Merit Protection Act by the Merit Protection Commissioner.

Subregulation (5) and (6) provide for the old Regulations and the Merit Protection Act to continue in force where an application for an investigation

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under regulation 83 of the old Regulations has been made before the commencing time and an application has not been made under regulation 84 of the old Regulations. The old Regulations and the Merit Protection Act continue in force to allow for any of the following matters:

*       the making of the application under regulation 84;

*       the giving of documents mentioned in subregulation 85(a) and (b) of the old Regulations;

*       the obligation under regulation 86 of the old Regulations to carry out an official direction;

*       the making of a decision by the Merit Protection Commissioner not to investigate, or not to investigate further;

*       the completion of the investigation and the making of a report under Division 4 of Part II of the Merit Protection Act by the Merit Protection Commissioner.

Regulation 4.16 of the Regulations allows for the completion of the investigation of grievance applications lodged under section 50 of the Merit Protection Act before the commencing time. The Merit Protection Act continues in force for:

*       the making of a decision by the Merit Protection Commissioner not to investigate or not to investigate further; or

*       the completion of the investigation and the making of a report under Division 4 of Part 11 of the Merit Protection Act by the Merit Protection Commissioner.

Regulation 4.17 of the Regulations provides for the Merit Protection Act to continue in force until the end of 4 December 2000 for a review in accordance with Division 4 of Part 11 of the Merit Protection Act by the Merit Protection Commissioner if the application for review is authorised in a way that is not described in regulation 4.15 or 4.16. Under the Merit Protection Act, a review may be authorised by an enactment other than the Merit Protection Act or these Regulations.

Regulation 4.18 of the Regulations provides for the Merit Protection Act to continue in force for the Merit Protection Commissioner to undertake, complete and report on any inquiry requested by the Minister or the Public Service Commissioner made before the commencing time.

Regulation 4.19 of the Regulations provides for the Merit Protection Act to continue in force until the end of 4 December 2000 for the Merit Protection Commissioner to provide advice requested under subsection 57(1) of the Merit Protection Act.

Regulation 4.20 of the Regulations provides for the Merit Protection Act to continue in force where, before the commencing time, the Merit Protection and Review Agency has received a request to perform functions under Division 6A of the Merit Protection Act. The Merit Protection Commissioner has the discretion to perform those functions which are jointly specified by an Agency Head and a staff organisation. Where the performance of functions under Division 6A of the Merit Protection Act has commenced before the commencing time the Merit Protection Commissioner may complete those functions.

Regulation 4.21 of the Regulations applies to the Merit Protection Commissioner, who is, under subsection 5(3) of the Act, the Merit Protection Commissioner under the new Act. Until a determination is made under section 53 of the new Act the appointment is taken to be subject to the terms and conditions applying to the person's appointment under the Merit Protection Act immediately before the commencing time (including those provided for under Remuneration Tribunal Determination 1999/05).

Regulation 4.22 of the Regulations provides for the Merit Protection Act to continue in force to allow for the preparation of a report on the Agency's operations from 1 July 1999 until the commencing time. The information required by subsection 83(3) of the Merit Protection Act is to be included as at the commencing time. The report must be given to the Minister no later than the time the Merit Protection Commissioner gives the first report under section 51 of the new Act to the Public Service Minister.

Part 5 of the Regulations deals with the continuity of certain delegations. authorisations and instruments after commencing time.

Regulations 5.1 to 5.10 of the Regulations deal with the making of some savings and transitional regulations relating to delegations, authorisations and certain related instruments that were in existence or have been made but have not come into effect prior to commencing time.

There exist many delegations and authorisations made under various Commonwealth laws which depend on the old Act framework for their validity.

These regulations are directed at ensuring that these delegations and authorisations will not become invalid at commencing time.

Part 6 of the Regulations deals with other transitional provisions.

Regulation 6.1 of the Regulations provides that the Safety, Rehabilitation and Compensation Act 1988 ('the SRC Act') is amended as set out in Schedule 1 of these Regulations.

Schedule 1 inserts a new subsection 23(1A) in the SRC Act, which introduces a limited eligibility for incapacity benefits for APS employees aged over 65.

The new Act abolishes compulsory age retirement for APS employees. Sections 19-22 of the SRC Act provide for weekly compensation payments to a person incapacitated for work as a result of an injury. Subsection 23(1) of the SRC Act, however, provides that compensation is not payable under sections 19-22 to a person who has reached age 65. Persons aged 65 and over have access to all other benefits under the SRC Act.

This regulation allows an APS employee aged over 63 years to access incapacity benefits for a limited period of time. The regulation amends section 23 of the SRC Act so that:

*       if an APS employee is incapacitated for work as the result of an injury occurring when he or she is aged 63 years or less, subsections 19-22 benefits are not payable after the employee reaches 65; and

*       if an APS employee is incapacitated for work as the result of an injury occurring when he or she is aged more than 63 years, subsections 19-22 benefits are payable in accordance with the SRC Act for a maximum of 104 weeks incapacity payments.

The regulation applies to APS employees injured after the commencing time and to APS employees aged 63 years or more who are receiving benefits under the SRC Act, or who are eligible to apply for such benefits, when the regulation commences.

The regulation should not apply to persons not employed under the new Act.

Section 23 of the SRC Act will continue to operate as presently in force for non-APS employees.

The Diction at the end of the Regulations comprises the dictionary of words and expressions used in these Regulations and, where relevant, the Public Employment (Consequential and Transitional) Amendment Act 1999, as provided for in regulation 1.3 of these Regulations.