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Australian Civilian Corps Bill 2011
15-02-2012 09:55 AM
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Australian Civilian Corps Bill 2011
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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
AUSTRALIAN CIVILIAN CORPS BILL 2010
SUPPLEMENTARY EXPLANATORY MEMORANDUM
CORRECTION TO THE EXPLANATORY MEMORANDUM
New Clauses to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Foreign Affairs,
the Honourable Kevin Rudd MP)
AMENDMENTS TO THE AUSTRALIAN CIVILIAN CORPS BILL 2010
The Australian Civilian Corps Bill 2010 (the Bill ) establishes the Australian Civilian Corps, and creates a legal framework for the employment and management of Australian Civilian Corps employees. The Bill was referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee (the FADTL Committee ) on 30 September 2010. The FADTL Committee received public submissions from a number of organisations, including in particular the Community and Public Sector Union. The FADTL Committee reported on 17 November 2010.
In addition, the Senate Scrutiny of Bills Committee has raised a number of concerns about certain aspects of the Bill.
The proposed Government amendments are in response to stakeholder comments on the Bill and the recommendations made by the two Senate Committees. Specifically, the amendments would provide for external review of certain decisions in relation to Australian Civilian Corps ( ACC ) employees, and clarify the Government’s policy intentions in relation to other aspects of the Bill.
FINANCIAL IMPACT STATEMENT
The proposed Government amendments have no financial impact.
DETAILED EXPLANATION OF AMENDMENTS
This amendment inserts the definition of ‘Presiding Officer’, which is a term used in proposed new subclause 17A(11) (see Amendment 5 below).
This amendment is an editorial amendment consequential to Amendment 3.
Clause 17 of the Bill permits the Director-General of the Australian Agency for International Development ( AusAID ) to determine whether an ACC employee has breached the ACC Code of Conduct, and to impose a sanction for any such breach. Paragraph 17(6)(c) currently provides that these decisions are subject to merits review. Amendment 3 deletes this provision because the reviewable decisions will now be specified in proposed clause 17A instead (see Amendment 5 below).
Subclause 17(7) of the Bill currently provides for the exceptions to the entitlement to merits review to be set out in the procedures determined by the Director-General. Amendment 4 deletes this provision because the exceptions will instead be provided for by regulations so that the exceptions will be subject to parliamentary scrutiny and disallowance (see Amendment 5 below).
The Bill currently provides for internal review, within AusAID, of any decision under clause 17 concerning breaches of the ACC Code of Conduct by ACC employees ( Code of Conduct decisions ). In response to recommendations made by the Senate Committees, amendments to the Bill are being proposed to provide for external merits review, instead of internal review, of Code of Conduct decisions.
Amendment 5 inserts a new clause 17A, which sets out the basic framework for external review of determinations of breaches of the ACC Code of Conduct and any sanction imposed. Consistent with the FADTL Committee’s recommendation, the proposed framework is substantially modelled on the review framework established under section 33 of the Public Service Act 1999 ( PS Act ).
Under proposed clause 17A, there will be no internal review of decisions concerning breaches of the ACC Code of Conduct. This is consistent with the review arrangement under the Public Service Regulations 1999 ( PS Regulations ) for decisions concerning breaches of the APS Code of Conduct: see subregulation 5.24(2) of the PS Regulations, which requires all applications for review of decisions concerning breaches of the Australian Public Service (APS) Code of Conduct to be made to the Merit Protection Commissioner instead of the Agency Head.
It should be noted that the review arrangement under proposed clause 17A is not the only review mechanism available in relation to decisions under the Bill. It may also be possible for judicial review to be sought under the Administrative Decisions (Judicial Review) Act 1977 or the Judiciary Act 1903 . Certain employment-related decisions may also be reviewable under the Fair Work Act 2009 .
Clause-by-clause explanations of the proposed provisions under clause 17A are as follows.
Proposed subclause 17A(1) specifies the kinds of decisions that are reviewable under the Bill. Those are the decisions that may be made by the Director-General under clause 17 concerning breaches of the ACC Code of Conduct, namely:
§ any determination that a person breached the ACC Code of Conduct when the person was an ACC employee; and
§ any decision to impose a sanction on the person for breaching the ACC Code of Conduct when the person was an ACC employee.
The right to seek review is, subject to the regulations, available to any person who is, or has been, an ACC employee. Extension of the review right to former ACC employees would enable a person to seek review of a Code of Conduct decision concerning him or her, or enable a review sought by a person to be completed, despite the person having ceased to be an ACC employee. This proposal recognises that engagement of a person as an ACC employee would only be for a short term (usually three to six months), making it difficult for review of any Code of Conduct decision to be sought and/or completed before the affected person ceases to be an ACC employee.
Proposed subclause 17A(2) excludes, from the review framework under clause 17A, any decision to terminate a person’s employment as an ACC employee. This exclusion is consistent with subsection 33(1) of the PS Act in relation to termination of APS employment. An application for relief in respect of the termination of employment of an ACC employee by the Director-General under clause 23 of the Bill, which the ACC employee claims is harsh, unjust or unreasonable, may be made under the relevant provisions of the Fair Work Act 2009 rather than under clause 17A of the Bill.
Proposed subclause 17A(3) permits regulations to be made to provide for exceptions to the entitlement to review under clause 17A. The note under this provision explains that possible exceptions include where an application for review is frivolous or vexatious. Another possible exception might be where the application is made outside the timeframe specified in the regulations.
Proposed subclause 17A(4) has the effect that, where a person is entitled to review under clause 17A, the Director-General must arrange for a review to be conducted. Such a review may be conducted either by an individual or body on their own, or by a committee constituted in accordance with the regulations.
It is anticipated that the Director-General will seek to establish an arrangement on a fee-for-service basis with the Merit Protection Commissioner for the Commissioner to review decisions, as requested by the Director-General from time to time, under regulation 7.4 of the PS Regulations. Such an arrangement, if established with the Merit Protection Commissioner, would be broadly consistent with existing arrangements for the Commissioner’s review of Code of Conduct decisions concerning other Government employees who are not covered by the PS Act.
While proposed subclause 17A(4) does not impose any obligation on any particular person or persons to conduct a review, it does impose an obligation on the Director-General to ensure that a review is in fact conducted in accordance with clause 17A. If, for some reason, a person requested to review a decision were to decline to do so, the Director-General would need to find another person, who meets the criteria set out in proposed subclauses 17A(5) to (8) in relation to independence and qualifications, to conduct the review.
Proposed subclauses 17A(5) to (8) require any review to be conducted by a suitably qualified person or a committee consisting of suitably qualified persons. The reviewer must not be, or include, the Director-General himself or herself, an AusAID employee or an ACC employee. As mentioned above, it is anticipated that the Director-General will seek to establish an arrangement with the Merit Protection Commissioner for the Commissioner to review decisions, as requested by the Director-General from time to time.
Proposed subclause 17A(9) expressly enables regulations to be made to provide for the powers available to the reviewer. The regulations for this purpose are expected to be substantially similar to the provisions in Division 5.3 of the PS Regulations, which apply to review of decisions affecting APS employees. However, the regulations would not specify any person or persons as the reviewer. Rather, it would be up to the Director-General to identify an appropriate person or appropriate persons who meet the requirements specified in proposed subclauses 17A(5) to (8) to conduct reviews.
It should be noted that proposed subclause 17A(9) is not intended to limit the power to make regulations under subclause 17A(1) in relation to reviews. That is, regulations may be made under subclause 17A(1) to prescribe matters not only in relation to the powers available to the reviewer.
Proposed subclause 17A(10) empowers the reviewer to make recommendations on the review, but not to make any binding decisions except as provided by the regulations. This is consistent with subsection 33(5) of the PS Act in relation to review of decisions affecting APS employees.
Proposed subclause 17A(11) empowers the reviewer to report to the Minister for Foreign Affairs, and either or both of the Prime Minister and the Presiding Officers of Parliament, where the reviewer is not satisfied with the response to the reviewer’s recommendations. This is consistent with subsection 33(6) of the PS Act in relation to review of decisions affecting APS employees.
This amendment is an editorial amendment consequential to Amendment 7.
This amendment inserts a new subclause (2) under clause 23 of the Bill to require any notice of termination of ACC employment to include the grounds for the termination.
This amendment inserts a new subclause (4) under clause 27 to clarify that a Commonwealth employer could not be required to release an employee to serve in the ACC unless the employee has requested the release. That is, an employer cannot be compelled by the Prime Minister under clause 27 of the Bill to release an employee against the employee’s will. This is consistent with the intention that participation in the ACC is entirely voluntary.
This amendment inserts a new clause 29A into the Bill that expressly prohibits patronage and favouritism in the exercise of powers under the Bill in relation to ACC employees. This is consistent with section 17 of the PS Act in relation to APS employees.
CORRECTION TO EXPLANATORY MEMORANDUM
Clause 10 - Constitution of the Australian Civilian Corps
Fifth and sixth lines - omit ‘a report on the ACC’s activities will be included in AusAID’s Annual Report’ and replace with ‘the ACC’s activities will be reported in AusAID’s Annual Report separately from other activities of AusAID’.
Currently, the explanation provided in the Explanatory Memorandum in relation to clause 10 states that the ACC will not have its own annual report, but a report on the ACC’s activities will be included in AusAID’s Annual Report. The above amendment to the Explanatory Memorandum is intended to address the FADTL Committee’s concern that the report on the ACC’s activities should be self-contained and comprehensive, and assist parliamentary scrutiny.