PUBLIC SERVICE REGULATIONS (AMENDMENT) 1981 NO. 34 PUBLIC SERVICE REGULATIONS (AMENDMENT) 1981 NO. 34 - TABLE OF PROVISIONS 1. Commencement 2. 3. Repeal of regulation 24-Record of punishments 4. Repeal of regulation 25-Definition of punishment 5. Repeal of regulation 31-Report of officers incapacitated through liquor or drugs 6. Repeal of regulation 39A-Suspension to be reported to Board 7. Conditions of transfer or promotion from Fourth Division to Third Division 8. Transfer expenses 9. 1981 No. 34 PUBLIC SERVICE REGULATIONS (AMENDMENT) - REG 1 Commencement 1. These Regulations shall come into operation on 15 March 1981. 1981 No. 34 PUBLIC SERVICE REGULATIONS (AMENDMENT) - REG 2 2. After regulation 6 of the Public Service Regulations the following regulation is inserted in Part I: Service of documents "6A. (1) For the purposes of the Act and these Regulations, unless the contrary intention appears in the Act or these Regulations, a document required to be given, delivered or furnished to a person or served on a person shall be given, delivered, furnished or served- (a) by delivering the document to that person personally; (b) by prepaying and posting the document as a letter to that person at his last known place of abode or business; (c) by delivering or prepaying and posting the document as a letter to an address for service of documents (if any) provided by that person for that purpose; or (d) by leaving the document at the last known place of abode or business of that person with some person apparently an inmate of that place and apparently not less than 16 years of age. "(2) Where a document required by the Act or these Regulations to be given, delivered or furnished to a person or served on a person is posted as a letter in accordance with this regulation, the document shall, unless the contrary is proved, be deemed to have been given, delivered, furnished or served at the time at which the letter would have been delivered in the ordinary course of post.". 1981 No. 34 PUBLIC SERVICE REGULATIONS (AMENDMENT) - REG 3 Repeal of regulation 24-Record of punishments 3. Regulation 24 of the Public Service Regulations is repealed. 1981 No. 34 PUBLIC SERVICE REGULATIONS (AMENDMENT) - REG 4 Repeal of regulation 25-Definition of punishment 4. Regulation 25 of the Public Service Regulations is repealed. 1981 No. 34 PUBLIC SERVICE REGULATIONS (AMENDMENT) - REG 5 Repeal of regulation 31-Report of officers incapacitated through liquor or drugs 5. Regulation 31 of the Public Service Regulations is repealed. 1981 No. 34 PUBLIC SERVICE REGULATIONS (AMENDMENT) - REG 6 Repeal of regulation 39A-Suspension to be reported to Board 6. Regulation 39A of the Public Service Regulations is repealed. 1981 No. 34 PUBLIC SERVICE REGULATIONS (AMENDMENT) - REG 7 Conditions of transfer or promotion from Fourth Division to Third Division 7. Regulation 112 of the Public Service Regulations is amended by omitting from sub-paragraph (ii) of paragraph (b) of sub-regulation (2) all the words and figures after "Fourth Division" (second occurring). 1981 No. 34 PUBLIC SERVICE REGULATIONS (AMENDMENT) - REG 8 Transfer expenses 8. Regulation 118 of the Public Service Regulations is amended by omitting sub-regulation (1). 1981 No. 34 PUBLIC SERVICE REGULATIONS (AMENDMENT) - REG 9 9. Parts IX and X of the Public Service Regulations are repealed, and the following Parts substituted: "PART IX-DISCIPLINE IN RELATION TO OFFICERS Interpretation "139. (1) For the purposes of the definition of 'Chief Officer' in sub-section 55 (1) of the Act, and in this Part, unless the contrary intention appears- (a) a Chief Officer in the Department in which the person last held office or, where that person did not hold office, the Department in which he last performed duties; or (b) where that Department has been abolished-a Chief Officer selected by the Board having regard to the duties last performed in the Service by that person, as the case requires, shall be taken to be the Chief Officer in respect of a person who- (c) has been dismissed from the Service under section 63A or 63D of the Act; (d) is deemed, under section 66A of the Act, to have retired from the Service; or (e) is an unattached officer within the meaning of Subdivision D of Division 6 of Part III of the Act. "(2) In this Part, unless the contrary intention appears- 'Board of Inquiry' means a Board of Inquiry appointed under sub-section 57 (6) of the Act; 'Director' means the Director, Grievance and Appeals Bureau, Office of the Public Service Board; 'Disciplinary Appeal Board' means a Disciplinary Appeal Board established under section 63E of the Act; 'proceeding' means- (a) in relation to a Board of Inquiry, an inquiry into a charge under sub-section 57 (5) of the Act; and (b) in relation to a Disciplinary Appeal Board, the hearing of an appeal under section 63D, 63F, 63P or 66B of the Act or the conduct of a review under section 63G of the Act, or any part of such an inquiry, hearing or review; 'review' means a review of a finding or of action taken referred to in section 63G of the Act, as the case requires. "(3) For the purposes of the definition of 'salary' in sub-section 55 (1) of the Act 'salary', in relation to an officer who is suspended from duty under section 57, 59 or 63B of the Act, includes any allowance that would have been payable to that officer under the Act or these Regulations otherwise than under regulation 97, 97B, 97C, 97D, 97E, 98AAA, 98A or 98AB if the officer had not been so suspended. Manner of appeal to Disciplinary Appeal Board "140. (1) An appeal to a Disciplinary Appeal Board under section 63D, 63F, 63P or 66B of the Act shall be made in writing and addressed to and lodged with the Director. "(2) An appeal to a Disciplinary Appeal Board under sub-section 63D (2) or 63P (1) of the Act shall specify the ground or grounds specified in that sub-section on which the appeal is made. Time within which appeal to be made to Disciplinary Appeal Board "141. (1) Subject to sub-regulation (2), an appeal referred to in sub-regulation 140 (1) shall be lodged with the Director by delivering it to, or posting it as a letter so as to be received by, the Director within the period of 14 days after the day on which the appellant was furnished, or is under sub-regulation 6A (2) to be deemed to have been furnished, with the particulars of reasons, or reasons, referred to in paragraph 62 (9) (a) or (b), 63 (4) (a) or (b), 63F (7) (a) or 66B (4) (a) or sub-section 63K (4), 63L (4) or 63M (2), as the case may be, of the Act or within such further period as the person who is required to furnish those particulars of reasons, or reasons, to that appellant considers reasonable. "(2) Where, in relation to an appeal referred to in sub-regulation 140 (1), an appellant, or any person on behalf of such an appellant, applies in writing to the Director for an extension of a period referred to in sub-regulation (1), the Director may, if there is reasonable ground for so doing, extend that period by such further period as he considers reasonable. "(3) For the purposes of this regulation, the Director shall, by notice published in the Gazette, nominate a place or places to which appeals may be delivered or posted and to which applications for extension of time may be directed. Officers' representative on Disciplinary Appeal Boards "142. (1) For the purposes of paragraphs 63E (2) (c) and 63E (3) (g) of the Act, a person nominated to represent officers shall be- (a) subject to paragraph (b), where the appellant or person requesting a review, as the case may be, is- (i) an officer, other than an officer to whom Subdivision D of Division 6 of Part III of the Act applies; and (ii) a member of an organization within the meaning of the Conciliation and Arbitration Act 1904- a person nominated by that organization; (b) where the appellant or person requesting a review, as the case may be, is an officer in relation to whom paragraph (a) applies and is a member of 2 or more organizations within the meaning of the Conciliation and Arbitration Act 1904-a person nominated by the organization of of which he is a member selected by that appellant or person in accordance with paragraph (2) (b) or (3) (b), as the case requires; or (c) in any other case-a person nominated by the appellant or person requesting a review from a list, of not less than 3 names of persons specified by the Public Service Board having regard to the duties or former duties of the appellant or person requesting a review, furnished to that appellant or person by the Director as soon as practicable after the appeal is delivered to, or received by, the Director in accordance with regulation 141 or the Public Service Board is satisfied under sub-section 63G (3) of the Act that the ground of the request is established, as the case may be. "(2) An appellant in relation to whom paragraph (1) (a) or (b) applies shall notify the Director in writing, as soon as practicable after he lodges his appeal, of- (a) where the appellant is an appellant in relation to whom paragraph (1) (a) applies other than an appellant in relation to whom paragraph (1) (b) applies-the name of the organization referred to in sub-paragraph (1) (a) (ii) of which he is a member; or (b) where the appellant is an appellant in relation to whom paragraph (1) (b) applies-the name of the organization referred to in that paragraph which he selects as the organization by which a person shall be nominated for the purposes of paragraph 63E (2) (c) or 63E (3) (g) of the Act, as the case requires, in relation to his appeal. "(3) A person requesting a review in relation to whom paragraph (1) (a) or (b) applies shall notify the Director, as soon as possible after he requests that review, of- (a) where he is a person in relation to whom paragraph (1) (a) applies other than a person in relation to whom paragraph (1) (b) applies-the name of the organization referred to in sub-paragraph (1) (a) (ii) of which he is a member; or (b) where he is a person in relation to whom paragraph (1) (b) applies-the name of the organization referred to in that paragraph which he selects as the organization by which a person shall be nominated for the purpose of paragraph 63E (2) (c) or 63E (3) (g) of the Act, as the case requires, in relation to his request. "(4) An appellant or person requesting a review in relation to whom paragraph (1) (c) applies shall, as soon as practicable after the list of names referred to in that paragraph is furnished to him, notify the Director of the name of the person nominated by him from that list for the purposes of paragraph 63E (2) (c) or 63E (3) (g) of the Act, as the case requires. Procedure of Director on receipt of appeal or in relation to request for review "143. (1) Where the Director receives an appeal in accordance with regulation 141 he shall, as soon as practicable- (a) where the person who appealed has notified the Director of the name of an organization in accordance with sub-regulation 142 (2)-obtain from that organization the name and address of the person nominated by that organization to represent officers in accordance with sub-regulation 142 (2) for the purposes of paragraph 63E (2) (c) or 63E (3) (g) of the Act, as the case requires; (b) notify the Chief Officer of the person who appealed that the appeal has been made and furnish that Chief Officer with a copy of the appeal; (c) obtain from the Chief Officer referred to in paragraph (b) the name and address of the officer nominated by him for the purposes of paragraph 63E (2) (b) or 63E (3) (f) of the Act, as the case requires; and (d) after the names and addresses of the officer nominated for the purposes of paragraph 63E (2) (b) or 63 (3) (f) of the Act and the person nominated for the purposes of paragraph 63E (2) (c) or 63E (3) (g) of the Act have been obtained by or notified to the Director-refer the appeal together with those names and addresses to a Chairman of a Disciplinary Appeal Board. "(2) Where, in relation to a request for a review, the Director is notified under sub-regulation 142 (3) or (4) of the name of an organization or person, he shall- (a) where the person requesting the review has notified the Director of the name of an organization in accordance with sub-regulation 142 (3)-obtain from that organization the name and address of the person nominated by that organization to represent officers in accordance with sub-regulation 142 (1) for the purposes of paragraph 63E (2) (c) or 63E (3) (g) of the Act, as the case requires; (b) notify the Chief Officer of the person requesting the review that the request has been made; (c) obtain from the Chief Officer referred to in paragraph (b) the name and address of the officer nominated by him for the purposes of paragraph 63E (2) (b) or 63E (3) (f) of the Act; and (d) after the names and addresses of the officer nominated for the purposes of paragraph 63E (2) (b) or 63E (3) (f) of the Act and the person nominated for the purposes of paragraph 63E (2) (c) or 63E (3) (g) of the Act have been obtained by or notified to the Director-refer those names and addresses to the Public Service Board. "(3) Where the Director requests that a Chief Officer referred to in paragraph (1) (b) or (2) (b) provide him with a name and address of an officer referred to in paragraph (1) (c) or (3) (c) that Chief Officer shall provide the name and address of that officer to the Director forthwith. Procedure on receipt by a Chairman of appeal or request for review "144. As soon as practicable after a Chairman of a Disciplinary Appeal Board receives- (a) an appeal referred to him in accordance with paragraph 143 (1) (d); or (b) a request for a review referred to the Disciplinary Appeal Board under sub-section 63G (3) of the Act, he shall, after taking into account- (c) the time it may take to notify the parties to the proceeding; and (d) the time it may take for the appellant or the person seeking the review to travel to attend the hearing and to prepare his case, proceed to- (e) fix the date on which and the time and place at which the Disciplinary Appeal Board will hear the proceeding; and (f) notify the parties to the proceeding and the officer and the person nominated for the purposes of paragraphs 63E (2) (b) and (c) or 63E (3) (f) and (g), as the case may be, of the Act of that date, time and place. Furnishing of documents to appellants and persons requesting a review "145. (1) Subject to sub-regulations (3) and (4), where a Board of Inquiry is to inquire into a charge, the Public Service Board shall- (a) furnish the charged officer with a copy of all documents intended to be used in the inquiry; and (b) where practicable, do so at least 7 days before the inquiry is to commence. "(2) Subject to sub-regulations (3) and (4), where a Disciplinary Appeal Board is to hear and determine an appeal, review a finding or review action taken in respect of a charge, the Chief Officer of the person appealing or requesting the review shall- (a) furnish that person with a copy of all documents intended to be used in the hearing of the appeal or in the review, as the case may be; and (b) where practicable, do so at least 7 days before the hearing or review is to commence. "(3) Where- (a) a document referred to in sub-regulation (1) or (2) contains information of a medical or psychiatric nature concerning the person to whom it is to be furnished under that sub-regulation; and (b) it appears to the Public Service Board or Chief Officer, required by that sub-regulation to furnish that document to that person, that the disclosure of that document to that person might be prejudicial to the physical or mental health or well-being of that person, the Public Service Board or Chief Officer, as the case may be, may refuse to furnish that person with that document. "(4) Where- (a) a document referred to in sub-regulation (1) or (2) contains information that is relevant to a person other than the charged officer, appellant or person seeking a review; and (b) the furnishing of that document in accordance with that sub-regulation might be prejudicial to the other person to whom the information referred to in paragraph (a) is relevant, the Public Service Board or Chief Officer, as the case may be, may refuse to furnish that document to that charged officer, appellant or person requesting a review. "(5) Where the Public Service Board or a Chief Officer refuses under sub-regulation (3) or (4) to furnish a person with a document, the Public Service Board or that Chief Officer, as the case requires, shall notify forthwith that person and the Board hearing the appeal of that refusal and of the sub-regulation under which it was made. "(6) Where, in relation to a proceeding before a Board of Inquiry or a Disciplinary Appeal Board, a charged officer, appellant or person requesting a review has not been furnished with a copy of a document that is intended to be used in the proceeding or has been furnished with that document less than 7 days before the proceeding commenced, a person shall not use that document in that proceeding unless he has- (a) notified that Board accordingly; and (b) furnished that Board with that document and with the reasons for not furnishing, or for furnishing less than 7 days before the proceeding commenced, the charged officer, appellant or person requesting a review, as the case requires, with a copy of that document. "(7) Where a Board hearing a proceeding is notified under sub-regulation (6) that a charged officer, appellant or person requesting a review has not been furnished with a document or has been furnished with a document less than 7 days before that proceeding commenced, that Board may, after consideration of the contents of the document and of the reasons furnished to it under paragraph (6) (b), subject to sub-regulation 148 (3)- (a) order that the document be furnished or shown to that charged officer, appellant or person requesting a review before it is used in that proceeding; (b) where the document is a document to which sub-regulation (3) applies-order that the document be furnished to a medical practitioner nominated for the purpose by the charged officer, appellant or person requesting a review, as the case may be; (c) order that the document not be used in the proceeding; or (d) permit the document to be used in that proceeding, and in so doing may make such orders in relation to the furnishing of that document to the charged officer, appellant or person requesting a review (including, without limiting the generality of the foregoing, orders adjourning the proceeding) as that Board thinks fit. "(8) In this regulation 'document' includes any part of a document. Powers of Chairman of Disciplinary Appeal Board "146. Where, under sub-section 63E (13) of the Act, the remaining members of a Disciplinary Appeal Board are to conduct a proceeding in the absence of the Chairman of that Board, the references in these Regulations to 'Chairman' shall be read in relation to that proceeding as references to those members acting together. Evidence taken in remote locality "147. (1) Where, in relation to an appeal under section 63D, 63F, 63P or 66B of the Act, it appears to a Disciplinary Appeal Board that it is undesirable, by reason of the appellant being stationed outside Australia or in a remote locality in Australia, or by reason of expense, inconvenience or delay, to require the appellant or any particular witness to attend to give evidence before the Disciplinary Appeal Board hearing the appeal, that Board may, by order in writing under the hand of its Chairman, appoint some fit and proper person to take the evidence of that appellant or witness. "(2) A person appointed under sub-regulation (1) shall take any evidence under that sub-regulation on oath or affirmation and, for the purpose of so doing, shall have all the powers of the Disciplinary Appeal Board that appointed him. "(3) Each party to an appeal under section 63D, 63F, 63P or 66B of the Act who is entitled to be represented before the Disciplinary Appeal Board hearing the appeal may be represented before any person taking evidence in connection with that appeal in pursuance of this regulation by a legal practitioner or some other person and the legal practitioner or other person may examine witnesses and address the person taking that evidence on behalf of the party whom he represents. "(4) Evidence taken under this regulation shall be certified under the hand of the person taking it, forwarded to the Disciplinary Appeal Board that appointed him and to the parties to the appeal and considered by that Board as evidence in connection with the appeal in relation to which it was so taken. Hearing to be in public except in special circumstances "148. (1) Subject to this regulation, a proceeding before a Board of Inquiry or a Disciplinary Appeal Board shall be in public. "(2) Where a Board of Inquiry or Disciplinary Appeal Board, as the case may be, is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, that Board may, by order- (a) direct that a proceeding take place in private and give directions as to the persons who may be present at that proceeding; (b) give directions prohibiting or restricting the publication of evidence given before that Board, whether in public or in private, or of matters contained in documents lodged with that Board or received in evidence by that Board; or (c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before that Board, or of the contents of a document lodged with that Board, in relation to the proceeding. "(3) In considering- (a) whether the hearing of a proceeding should be held in private; or (b) whether publication, or disclosure to some or all of the parties, of evidence given before a Board of Inquiry or Disciplinary Appeal Board, or of a matter contained in a document lodged with that Board or received in evidence by it, should be prohibited or restricted, that Board shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before it should be held in public and that evidence given before it and the contents of documents lodged with it or received in evidence by it should be made available to the public and to all the parties, but shall pay due regard to any reasons given to it why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted. "(4) Notwithstanding sub-regulations (1), (2) and (3), where a Board of Inquiry reports, in accordance with sub-section 57 (5) of the Act, that it finds a charge proved or where a recommendation is made to the Public Service Board that action be taken to dismiss an officer from the Service- (a) the Board of Inquiry or officer holding an inquiry into the charge in relation to which that report or recommendation was made, as the case may be; or (b) if the recommendation was the subject of or a consequence of an appeal to a Disciplinary Appeal Board-that Board, shall furnish the Public Service Board with a copy of all of the evidence taken by him or it, as the case may be, in relation to the charge or appeal in relation to which the recommendation was made. Witnesses "149. (1) For the purposes of a proceeding before a Board of Inquiry or a Disciplinary Appeal Board, the Chairman of that Board may, by writing under his hand, summon a person to attend before that Board to give evidence and to produce such documents (if any) as are referred to in the summons. "(2) Where a Disciplinary Appeal Board appoints a person under sub-regulation 147 (1) to take the evidence of an appellant or witness, the Chairman of that Board may, by writing under his hand, summon that appellant or witness to appear before the person so appointed to give evidence and to produce such documents (if any) as are referred to in the summons. Offences by persons summoned to attend before Disciplinary Appeal Boards "150. (1) Subject to sub-regulation (2), a person summoned to attend at a proceeding before a Disciplinary Appeal Board shall not, without reasonable excuse- (a) fail (in the case of a person other than an officer or employee, after tender of reasonable expenses) to attend or to produce documents in accordance with the summons; (b) at that proceeding refuse to be sworn or to make an affirmation; or (c) at the proceeding refuse to answer a question, relevant to that proceeding, that the Chairman of that Board requires him to answer. Penalty: $40. "(2) Nothing in these Regulations shall be construed as requiring a person to answer a question where the answer to that question would tend to incriminate him. Witnesses expenses "151. (1) A person, other than a person referred to in sub-regulation (4), who is summoned to attend, and attends, for the purpose of giving evidence in an inquiry made by a Board of Inquiry or in an appeal to a Disciplinary Appeal Board, and who applies to the Chairman of that Board for the payment of costs reasonably incurred by him in relation to that attendance, is entitled to the payment by the Commonwealth to him of those costs assessed by that Chairman in accordance with the scale applicable to witnesses expenses payable under the Public Works Committee Regulations. "(2) An assessment made under sub-regulation (1) shall be in writing and shall be furnished to the person in respect of whom it is made. "(3) An amount payable to a person in accordance with sub-regulation (1) is payable to him, upon tender of a copy of the assessment referred to in sub-regulation (1), by the Department of the Chief Officer of the appellant or person charged, as the case requires. "(4) This regulation does not apply to- (a) officers or employees summoned to give evidence; or (b) witnesses who are summoned at the request of an appellant in respect of whom an order has been made under sub-section 63E (10) of the Act. Representation of parties "152. (1) A person who is a party to a proceeding before a Board of Inquiry or a Disciplinary Appeal Board is entitled to examine witnesses and address that Board at that proceeding. "(2) A person referred to in sub-regulation (1) may be represented at a proceeding referred to in that sub-regulation by a legal practitioner or some other person and the legal practitioner or other person may examine witnesses and address the Board referred to in that sub-regulation on behalf of the person referred to in that sub-regulation. Protection of members of Boards of Inquiry and Disciplinary Appeal Boards, witnesses, &c. "153. (1) An action or proceeding, civil or criminal, does not lie against a person who is a Chairman or member of a Board of Inquiry or Disciplinary Appeal Board for or in respect of any act or thing done in good faith by the person in his capacity as such a Chairman or member. "(2) A legal practitioner representing a party to a proceeding before a Board of Inquiry or Disciplinary Appeal Board has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court. "(3) Subject to this Part- (a) a person summoned to attend or appearing before a Board of Inquiry or a Disciplinary Appeal Board to give evidence at a proceeding; or (b) a person, other than a legal practitioner, representing a party at the hearing of a proceeding before such a Board, has the same protection, and is, in addition to the penalties provided by this Part, subject to the same liabilities, in any civil or criminal proceedings, as a witness in proceedings in the High Court. Notification of findings of Board of Inquiry "154. Where a Board of Inquiry makes a finding under sub-section 57 (5) of the Act, it shall, as soon as practicable after it has completed its inquiry, notify the officer charged, the Minister and the Public Service Board in writing of its finding and of the reasons for its finding. Notification of findings of Disciplinary Appeal Board "155. Where a Disciplinary Appeal Board makes a decision in respect of an appeal under section 63D, 63F, 63P or 66B of the Act or a request for a review under section 63G of the Act, the Chairman of that Board shall, as soon as practicable after that Board has made its decision, notify- (a) the appellant or person requesting the review; (b) the Chief Officer of that appellant or person; and (c) the Public Service Board, in writing of the decision and of the reasons for that decision. Payment of costs "156. (1) In this regulation a reference to a successful appeal includes a reference to an appeal as a result of the determination of which the severity of action taken or to be taken under section 62 or 63 of the Act in respect of an officer is reduced. "(2) Where- (a) an appeal to a Disciplinary Appeal Board is successful; or (b) a charge into which a Board of Inquiry was inquiring is, as a result of that inquiry, found not to be proved, the Disciplinary Appeal Board that heard the appeal, or the Board of Inquiry that conducted the inquiry, shall consider and determine whether the Department of the Chief Officer referred to in paragraph 63E (2) (b) or 63E (3) (f), as the case may be, of the Act in relation to the appeal, or, in the case of an inquiry, the Public Service Board, should pay the whole or part of the costs incurred in that appeal by that appellant or in that inquiry by that charged officer. "(3) Where a Disciplinary Appeal Board or Board of Inquiry determines under sub-regulation (2) that a Department or the Public Service Board should pay the whole or part of the costs incurred by an appellant in an appeal or a charged officer in an inquiry, that Department or the Public Service Board shall pay to that appellant or charged officer the amount that the Disciplinary Appeal Board or Board of Inquiry has so determined. Costs of lapsed appeal or inquiry "157. (1) Except where an order under sub-section 63E (10) of the Act has been made, where an appeal to a Disciplinary Appeal Board under section 63D, 63F, 63P or 66B of the Act or an inquiry being conducted under sub-section 57 (5) of the Act by a Board of Inquiry lapses because of the death, mental or physical incapacity or compulsory retirement of the appellant or charged officer, an application for payment of the costs reasonably incurred by the appellant in the appeal or charged officer in the inquiry may be made to the Public Service Board by that appellant or charged officer or by a person administering his affairs or estate under a law of the Commonwealth or of a State or of a Territory, or by a member of his family, as the case requires. "(2) Where the Public Service Board receives an application under sub-regulation (1)- (a) in the case of a lapsed appeal referred to in sub-regulation (1)-it shall refer the application to the Department of the Chief Officer referred to in paragraph 63E (2) (b) or 63E (3) (f), as the case may be, of the Act in relation to that appeal and that Department shall pay to the applicant the costs to which the application relates; and (b) in the case of a lapsed inquiry referred to in sub-regulation (1)-it shall pay to the applicant the costs to which the application relates. "(3) In this regulation a reference to a member of the family of a person shall be read as including a reference to a parent, spouse, de facto spouse or child of that person, or the spouse of a child of that person. Recording of action taken "158. (1) Subject to this regulation, where action other than counselling is taken under, or by virtue of the application of, section 57, 58, 62, 63, 63D, 63K, 63L, 63M or 63S of the Act in relation to an officer, the Chief Officer shall cause a record of the action so taken to be entered in an official conduct record kept and maintained in relation to that officer. "(2) Notwithstanding the provisions of this regulation, the Chief Officer shall not enter under sub-regulation (1) a record of action taken in relation to an officer while that action is or may become the subject of an appeal to a Disciplinary Appeal Board under section 63D or 63P of the Act. "(3) Subject to sub-regulation (5), the record of action entered under sub-regulation (1) in the official conduct record of an officer shall be kept- (a) in the case of admonition-for a period of 2 years; or (b) in any other case-for a period of 5 years, after the date of the taking of the action, at the expiration of which period the Chief Officer shall cause the record of that action to be destroyed. "(4) Where an officer is promoted or transferred from one Department to another Department, the appropriate officer of the Department from which the officer is promoted or transferred shall transmit the official conduct record of the officer to the appropriate officer of the Department to which the officer is promoted or transferred and that record shall be maintained in accordance with this regulation. "(5) Notwithstanding sub-regulation (3), where- (a) a record of action is entered under sub-regulation (1) in the official conduct record of an officer; (b) a record of action that had previously been taken in relation to that officer is entered in that record; and (c) the period of time for which the record of the action referred to in paragraph (b) is to be kept under sub-regulation (3) has not expired, the record of action referred to in paragraph (b) shall be kept until the record of action referred to in paragraph (a) is to be destroyed in accordance with sub-regulation (3). "(6) Where, under Division 6 of Part III of the Act, an officer is dismissed from the Service or reduced to a lower Division, office or salary, the provisions of this regulation do not operate so as to require the expunging of a reference to the dismissal or reduction from any record kept in relation to the officer other than his official conduct record or so as to require the destruction of any record other than his official conduct record. "(7) Nothing in this regulation affects the taking, keeping or maintaining of any record, other than an official conduct record, in relation to an officer, under the provisions of the Act or these Regulations. "(8) Where, before the commencement of this regulation, a record of a punishment has been made in the official conduct record of an officer under regulation 24 of the Public Service Regulations as in force immediately before the commencement of this regulation, and where such a record has not been destroyed, that record shall be deemed to have been made under this regulation and the provisions of this regulation apply mutatis mutandis to that record as if this regulation had been in operation when that record was so made. Amendment of official conduct record "159. Where an official conduct record is kept, in relation to an officer, under regulation 158 and where, in relation to that officer- (a) a conviction is regarded under section 63F of the Act as having been nullified; or (b) the Public Service Board, after review, quashes a finding or takes action to mitigate the severity of action taken in respect of a charge, the Chief Officer shall cause the entry in that official conduct record in relation to that conviction or finding to be deleted or amended accordingly. Delegation "160. (1) The Director may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to an officer or employee holding, or performing the duties of, an office in a Department referred to in sub-section 63E (3) of the Act or an office in the Office of the Public Service Board any of his powers under this Part, other than this power of delegation. "(2) A power delegated in accordance with sub-regulation (1), when exercised by the delegate, shall, for the purposes of these Regulations, be deemed to have been exercised by the Director. "(3) A delegation under this regulation does not prevent the exercise of a power by the Director. "PART X-DISCIPLINE IN RELATION TO UNATTACHED OFFICERS AND TEMPORARY EMPLOYEES Interpretation "161. In this Part, unless the contrary intention appears- 'authorized officer' means an officer authorized by a Chief Officer for the purposes of sub-section 61 (2) of the Act; 'employee' means an employee to whom this Part applies by virtue of the application of regulation 165; 'unattached officer' has the same meaning as in Subdivision D of Division 6 of Part III of the Act. Misconduct in relation to unattached officers "162. (1) In this regulation, unless the contrary intention appears, 'misconduct' has the same meaning as in Subdivision D of Division 6 of Part III of the Act. "(2) For the purposes of sub-section 63K (1) of the Act, where there are reasonable grounds for belief that an unattached officer may, before he became an unattached officer, have committed misconduct, and where an authorized officer decides that that unattached officer should be charged with misconduct committed by him before he became an unattached officer, that authorized officer may so charge that unattached officer in accordance with this regulation. "(3) For the purposes of sub-section 63L (1) of the Act, where there are reasonable grounds for belief that an unattached officer may have committed misconduct while he was an unattached officer, and where an authorized officer decides that that unattached officer should be charged with that misconduct, that authorized officer may so charge that unattached officer in accordance with this regulation. "(4) Where an authorized officer referred to in sub-regulation (2) or (3) decides that an unattached officer should be charged in accordance with this regulation, that authorized officer shall- (a) by writing under his hand delivered to that unattached officer, charge that unattached officer with the misconduct referred to in sub-regulation (2) or (3) as the case requires; and (b) upon request by the unattached officer so charged, furnish copies of the charge to either or both of the following, that is to say- (i) to an organization specified by that unattached officer, being an organization within the meaning of the Conciliation and Arbitration Act 1904; or (ii) to a person, specified by that unattached officer, being a person whom the unattached officer wishes to assist him in relation to the charge. "(5) Where an authorized officer charges an unattached officer for the purposes of section 63K or 63L of the Act, he shall furnish a copy of that charge forthwith to the Board. Inquiries into charges against unattached officers "163. (1) For the purposes of sub-section 63K (2) or 63L (2), as the case requires, of the Act, where an unattached officer is charged in accordance with regulation 162, an inquiry shall, without undue delay, be held into the charge- (a) subject to paragraph (b), by a person selected by the Board from among the persons specified in a class of persons prescribed in regulation 164 for the purposes of paragraph 63M (1) (b) of the Act; or (b) if the person selected in accordance with paragraph (a) is, under sub-regulation (2), ineligible to hold an inquiry into the charge-by another person selected in accordance with that paragraph. "(2) An inquiry into a charge shall not be held under sub-regulation (1)- (a) by an officer who has furnished a report in respect of any of the matters alleged to constitute the misconduct to which the charge relates; or (b) by the officer who laid the charge. "(3) In an inquiry for the purposes of sub-regulation (1), a formal hearing is not required, but the charged unattached officer shall be notified that an inquiry is to be held into the alleged misconduct and given an opportunity to state, in writing, within 7 days or such longer period as the person holding the inquiry may allow after the notice is furnished to him, whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters, including a statement submitting that the matters alleged to constitute the misconduct are, even if true, incapable in law of constituting the misconduct for the purposes of the Act or these regulations. "(4) Where, in relation to an inquiry under sub-regulation (1), a charged unattached officer has furnished a statement in relation to the matters alleged to constitute misconduct, the officer shall, if he so requests, be given the opportunity of making a further oral statement to the person holding the inquiry and, if he does so, a written record of his further statement shall be made by that person. "(5) An unattached officer who has been charged with misconduct under regulation 162 shall not, by reason only of having failed to deny the truth of a matter included among matters alleged to constitute the misconduct, be taken to have admitted the truth of that matter. Prescribed class of persons for purposes of paragraph 63M (1) (b) of the Act "164. For the purposes of paragraph 63M (1) (b) of the Act, all persons who are Chief Officers within the meaning of the Act are a prescribed class of persons. Employees to whom this Part applies "165. (1) An employee referred to in section 63T of the Act, other than- (a) an employee who is employed or engaged overseas to perform duties overseas; or (b) subject to sub-regulation (2), an employee who- (i) is employed or engaged to perform duties on the personal staff of a Minister or another member of the Parliament; or (ii) is employed or engaged to perform duties on the personal staff of a Minister or another member of the Parliament and who, immediately before he was so employed or engaged by that Minister or member of the Parliament, was continuously employed or engaged by one or more Ministers or other members of the Parliament, being an employee who was not, immediately before he was so employed or engaged, employed in a Department, is an employee to whom this Part applies. "(2) For the purposes of paragraph (1) (b) a person is deemed not to be employed in a Department when that person is employed or engaged to perform duties on the personal staff of a Minister or of another member of the Parliament. Application of Division 6 of Part III of the Act and Parts IX and X to employees "166. For the purposes of section 63T of the Act, the provisions of Subdivisions A, C and D of Division 6 of Part III of the Act, of section 63R of the Act and of regulations 139 to 146 (inclusive) and 148 to 164 (inclusive) apply, subject to the modifications and adaptations specified in regulations 167 and 168, to and in relation to an employee to whom this Part applies as if, unless the contrary intention appears, a reference in those provisions- (a) to employment included a reference to engagement under the Act; (b) to the Service included a reference to the Department in which that employee is employed under section 82 of the Act; (c) to an officer included a reference to such an employee; (d) to an unattached officer within the meaning of Subdivision D of Division 6 of Part III of the Act were a reference to an employee to whom this Part applies and who is employed or engaged to perform duties on the personal staff of a Minister or of another member of Parliament; and (e) to an office included a reference to employment or engagement under the Act. Modification and adaptation of certain provisions of the Act "167. The provisions of the Act specified in regulation 166 are modified and adapted for the purposes of section 63T of the Act and that regulation as follows: (a) section 55- (i) by omitting 'the Service' from paragraph (a) of the definition of 'Chief Officer' in sub-section (1) and substituting 'his employment'; (ii) by adding 'or' at the end of paragraph (a) of the definition of 'Chief Officer' in sub-section (1); (iii) by omitting paragraph (b) of the definition of 'Chief Officer' in sub-section (1); (iv) by omitting from sub-section (1) the definition of 'original office' and substituting the following definition: ' "original office" means, in the case of a person- (a) who has been dismissed from his employment under section 63A, 63D or 63N; or (b) who has been transferred to other duties under section 62, 63, 63A or 63D, the duties performed by him immediately before his dismissal or transfer, as the case may be;'; (v) by omitting sub-section (2); (vi) by inserting in sub-section (3) 'or by perfoming duties as an employee in a Department' after 'a Department'; and (vii) by omitting sub-section (4); (b) section 56-by omitting from paragraph (g) 'appointment to the Service' and substituting 'employment under this Act'; (c) the heading to Subdivision C of Division 6 of Part III-by omitting 'included in the Second, Third or Fourth Division'; (d) section 61-by omitting from sub-sections (1) and (2) 'included in the Second, Third or Fourth Division'; (e) section 62- (i) by omitting from sub-paragraph (iii) of paragraph (a) of sub-section (6) 'occupies an office' and substituting 'performs duties'; (ii) by omitting from sub-paragraph (iv) of paragraph (a) of sub-section (6) all the words after 'to' and substituting 'other duties for which he is qualified (whether at the same or a different locality);'; (iii) by omitting from sub-paragraph (v) of paragraph (a) of sub-section (6) all the words and figures after 'officer' and substituting 'to other duties for which he is qualified (whether at the same or a different locality) and causing a sum, not exceeding $40, to be deducted from his salary;'; (iv) by omitting from sub-paragraph (vi) of paragraph (a) of sub-section (6) 'occupies an office' and substituting 'performs duties'; (v) by omitting from sub-paragraph (vi) of paragraph (a) of sub-section (6) 'to a specified office in the same Division (whether at the same or a different locality), being an office for which he is qualified and which has the same classification as the classification of the office held by him' and substituting 'to other duties for which he is qualified (whether at the same or a different locality)'; (vi) by omitting from sub-paragraph (vii) of paragraph (a) of sub-section (6) all the words after 'officer' and substituting 'to other duties for which he is qualified (whether at the same or a different locality) and the salary or the salary range applicable to which is lower than his salary immediately before the inquiry;'; (vii) by omitting from paragraph (b) of sub-section (6) 'the Service' and substituting 'his employment'; and (viii) by omitting sub-section (7); (f) section 63- (i) by omitting from paragraph (a) of sub-section (1) 'included in the Second, Third or Fourth Division'; (ii) by omitting paragraph (c) of sub-section (1) and substituting the following paragraph: '(c) direct that there be taken, in the case of an employee, action by way of transferring him to other duties for which he is qualified (whether at the same or a different locality) and the salary or salary range applicable to which is the same as or lower than that applicable to the duties of the employee immediately before the Chief Officer so directs; or'; (iii) by omitting from paragraph (d) of sub-section (1) 'the Service' and substituting 'his employment'; (iv) by omitting sub-section (2); and (v) by inserting in sub-section (6) ', Chief Officer' after 'Permanent Head'; (g) section 63A- (i) by omitting 'the Service' (first occurring) and substituting 'his employment'; and (ii) by omitting from sub-paragraph (ii) of paragraph (c) and from sub-paragraph (ii) of paragraph (d) 'the Service' and substituting 'his employment'; (h) section 63B- (i) by omitting from paragraphs (a) and (b) of sub-section (1) 'included in the Second, Third or Fourth Division' (wherever occurring); and (ii) by omitting from paragraph (a) of sub-section (3) '62 (2)' and substituting '61 (2)'; (i) section 63C- (i) by omitting from sub-section (7) 'outside the Service'; (ii) by omitting from sub-section (8) 'outside the Service'; (iii) by omitting from sub-section (10) 'the Service' and substituting 'his employment'; (iv) by omitting from sub-section (11) 'the Service' and substituting 'his employment'; and (v) by omitting from sub-section (12) 'the Service' and substituting 'his employment'; (j) section 63D- (a) by omitting from sub-section (5) 'the Service' and substituting 'his employment'; and (b) by omitting from paragraph (c) of sub-section (6) 'another office' and substituting 'other duties'; (k) section 63E- (i) by omitting from paragraph (a) of sub-section (3) 'the Service' and substituting 'his employment'; (ii) by omitting from paragraph (c) of sub-section (3) 'the Service' and substituting 'his employment'; and (iii) by omitting from sub-section (10) ', 63F or 66B' and substituting 'or 63F'; (1) section 63F- (i) by omitting from sub-section (2) 'the Service' (first occurring) and substituting 'his employment'; (ii) by omitting from sub-section (2) 're-appointment to the Service' and substituting 're-employment or re-engagement'; (iii) by omitting from sub-section (3) 'another office' and substituting 'other duties'; (iv) by omitting from paragraph (a) of sub-section (4) 'the Service' and substituting 'his employment'; (v) by omitting from paragraph (b) of sub-section (4) 're-appointed to the Service' and substituting 're-employed or re-engaged under the Act'; (vi) by omitting from paragraph (a) of sub-section (6) 're-appointed to the service, or transferred or promoted to' and substituting 're-employed or re-engaged under the Act or transferred'; (vii) by omitting from paragraph (a) of sub-section (6) 'so re-appointed, transferred or promoted' and substituting 'so re-employed, re-engaged or transferred'; (viii) by omitting from paragraph (b) of sub-section (8) 're-appointed to the service, or be transferred or promoted' and substituting 're-employed or re-engaged under the Act or be transferred'; (ix) by omitting from sub-paragraph (1), (ii) and (iii) of paragraph (a) of sub-section (9) 'appoint the applicant to the Service' and substituting 'employ or engage the applicant'; (x) by omitting from sub-paragraph (i) of paragraph (a) of sub-section (9) 'another office' and substituting 'elsewhere'; (xi) by omitting from sub-paragraph (iii) or paragraph (a) of sub-section (9) 'another office' and substituting 'elsewhere'; (xii) by inserting in sub-section (10) 'or re-engaged or re-employed' after 'Service' (first occurring); (xiii) by inserting in sub-section (10) 'or re-engage or re-employ that person' after 'Service' (second occurring); (xiv) by omitting from sub-section (11) 'the Service, is re-appointed to the Service' and substituting 'his employment, is re-employed or re-engaged'; (xv) by omitting from sub-section (11) 'so re-appointed' and 'in the Service' and substituting 'so re-employed or re-engaged' and 'in that employment' respectively; and (xvi) by omitting from sub-section (12) all the words after 'means' and substituting 'employment the duties of which were per-formed by that person or officer, equivalent employment, or, if such employment is not available, employment determined by the Board to be as nearly as possible equivalent to the duties in which that person or officer was originally employed or engaged'; (m) section 63G- (i) by omitting from sub-paragraph (iii) or paragraph (a) of sub-section (1) 'another office' and substituting 'other duties'; (ii) by omitting from sub-paragraph (iv) of paragraph (a) of sub-section (1) 'the Service' and substituting 'his employment'; (iii) by omitting from paragraph (b) of sub-section (1) 'the Service' and substituting 'his employment'; (iv) by omitting from paragraph (a) of sub-section (7) 'the Service' (first occurring) and substituting 'his employment'; (v) by omitting sub-paragraph (i) of paragraph (a) of sub-section (7) and substituting the following sub-paragraph: '(i) re-employ or re-engage the person in an appropriate office within the meaning of sub-section 63F (12);'; (vi) by omitting paragraph (b) of sub-section (7) and substituting the following paragraph: '(b) in relation to a person who had been transferred-direct that he be transferred to an appropriate office within the meaning of sub-section 63F (12).'; (vii) by omitting from sub-section (9) 'the Service, is re-appointed to the Service' and substituting 'his employment, is re-employed or re-engaged'; and (viii) by omitting from sub-section (9) 'so re-appointed' and 'in the Service' and substituting 'so re-employed or re-engaged' and 'in that employment' respectively; (n) section 63J-by omitting the definition of 'unattached officer' in sub-section (1); (o) section 63K-by omitting from sub-section (3) 'the Service' and substituting 'his employment'; (p) section 63L-by omitting from sub-section (3) 'the Service' (last occurring) and substituting 'his employment'; (q) section 63M- (i) by omitting from sub-section (1) 'the Service' (last occurring) and substituting 'his employment'; and (ii) by omitting from sub-section (2) 'the Service' and substituting 'his employment'; and (r) section 63N-by omitting 'the Service' (wherever occurring) and substituting 'his employment or engagement'. Modification and adaptation of regulations 139 to 164 "168. The provisions of the regulations specified in regulation 166 are modified and adapted for the purposes of that regulation as follows: (a) regulation 139- (i) by omitting 'the Service' from paragraph (a) of the definition of 'Chief Officer' in sub-regulation (1) and substituting 'his employment'; (ii) by omitting 'last held office' from paragraph (d) of the definition of 'Chief Officer' in sub-regulation (1) and substituting 'was last employed or engaged'; and (iii) by omitting from paragraph (e) of that definition 'in the Service'; (b) regulation 148-by omitting from sub-regulation (4) 'the Service' and substituting 'his employment'; and (c) regulation 158-by omitting from sub-regulation (6) 'the Service' and substituting 'his employment'.". - NOTES 1981 No. 34*1* PUBLIC SERVICE REGULATIONS*2* (AMENDMENT) *1* Notified in the Commonwealth of Australia Gazette on 13 March 1981. *2* Statutory Rules 1935 No. 18 as amended to date. For previous amendments see Note 2 to Statutory Rules 1981 No. 9 and see also Statutory Rules 1981 No. 9.