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2008 - 2009 - 2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN CIVILIAN CORPS BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Foreign Affairs,
the Honourable Stephen Smith MP)
AUSTRALIAN CIVILIAN CORPS BILL 2010
OUTLINE
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.
Australian Civilian Corps employees will be a unique category of
Commonwealth employee, engaged for specified periods to work in crisis
environments overseas before returning to their regular employment.
The Bill provides for terms and conditions and other employment
arrangements that are specifically designed for this kind of employment.
FINANCIAL IMPACT STATEMENT
There are no direct financial impacts from this Bill.
NOTES ON CLAUSES
In these notes on clauses the following abbreviations are used:
ACC Australian Civilian Corps
APS Australian Public Service
Department Department of Foreign Affairs and Trade
FW Act Fair Work Act 2009
PS Act Public Service Act 1999
Part 1 - Preliminary
Clause 1 - Short title
1. Once enacted, the short title of the Bill will be the Australian
Civilian Corps Act 2010.
Clause 2 - Commencement
2. The table in this clause sets out when the Bill's provisions commence.
3. Clauses 1 and 2 commence on the day that the Australian Civilian Corps
Act receives the Royal Assent (item 1 of the table). Clauses 3 to 31
commence on the 28th day after the Australian Civilian Corps Act
receives the Royal Assent (item 2 of the table).
Clause 3 - Objects
4. This clause sets out the objects of the Bill, which are:
. to establish the ACC; and
. to provide a legal framework for the effective and fair employment and
management of ACC employees.
Clause 4 - Simplified outline
5. This clause provides a simplified outline of the Bill.
Clause 5 - Definitions
6. This clause contains a list of every term that is defined in the Bill.
7. The definitions are explained below in alphabetical order.
AusAID
8. AusAID means the Australian Agency for International Development. A
reference to AusAID should be interpreted as being a reference to
whatever body of that name is in existence from time to time.
Australian Civilian Corps Code of Conduct
9. ACC Code of Conduct is the code of conduct prescribed under subclause
15(1).
Australian Civilian Corps employee
10. An ACC employee is a person engaged under clause 19.
Australian Civilian Corps Values
11. ACC Values are the values prescribed under clause 12.
Director-General
12. Director-General means the Director-General of AusAID.
enterprise agreement
13. Enterprise agreement has the meaning given to it by section 12 of the
FW Act.
fair work instrument
14. Fair work instrument has the meaning given to it by section 12 of the
FW Act.
overseas
15. Overseas means outside of Australia and the Territories.
WR Act collective transitional instrument
16. WR Act collective transitional instrument means an award, a collective
agreement or a pre-reform certified agreement.
Clause 6 - Crown to be bound
17. This clause provides that the Australian Civilian Corps Act will apply
to the Crown in each of its capacities, not only in right of the
Commonwealth.
18. However, the clause makes clear that even though the Act will apply to
the Crown, the Crown is not liable to be prosecuted for any offence
under the Act nor can a pecuniary penalty be imposed.
Clause 7 - Extension to external Territories
19. This clause provides that the Australian Civilian Corps Act will apply
to every external Territory. External Territory has the meaning given
to it by the Acts Interpretation Act 1901.
Clause 8 - Extension to things overseas
20. This clause provides that the Australian Civilian Corps Act will apply
to all actions, omissions, matters and things overseas. This clause
expressly extends the application of the Act to things that take place
outside of Australia.
Clause 9 - Relationship with Fair Work Acts
21. This clause provides that the Australian Civilian Corps Act will have
effect subject to the FW Act and the Fair Work (Transitional Provisions
and Consequential Amendments) Act 2009 (the Fair Work Acts). This
clause ensures that the Act does not override the Fair Work Acts, even
though the Act is a later Act.
22. Subclause (2) makes clear that the rule in subclause (1) is limited
only to the Fair Work Acts and should not be taken to apply to the
relationship between the Australian Civilian Corps Act and any other
Act.
Part 2 - Australian Civilian Corps
Clause 10 - Constitution of the Australian Civilian Corps
23. This clause provides that the ACC will consist of ACC employees.
24. The ACC will not have any separate legal existence from the
Commonwealth and will not be a separate agency under the Financial
Management and Accountability Act 1997.
25. The ACC will not have its own annual report. Instead, a report on the
ACC's activities will be included in AusAID's Annual Report.
Clause 11 - Management of the Australian Civilian Corps
26. This clause provides that the Director-General is, under the Minister,
responsible for the management of the ACC. The reference to the
Minister in this clause makes clear that the Director-General's
responsibility for the management of the ACC is subject to the
Minister's powers under the Constitution (and in particular section 64
of the Constitution).
Clause 12 - Australian Civilian Corps Values
27. This clause provides for regulations to be made which will prescribe
the ACC Values. The ACC Values will provide the philosophical
underpinning for the ACC and articulate the culture and operating ethos
of the ACC. The ACC Values will provide the context within which
powers under the Australian Civilian Corps Act will be exercised.
28. It is intended that the ACC Values will be based on the APS Values,
but tailored to reflect the unique nature of the ACC and its overseas
working environment.
Clause 13 - Director-General's directions about the Australian Civilian
Corps Values
29. This clause provides that the Director-General may issue directions in
relation to the ACC Values. Any directions that are issued by the
Director-General will be a legislative instrument for the purposes of
the Legislative Instruments Act 2003.
30. Directions may be issued for the purpose of determining the scope or
application of any particular value. In this way the Director-General
will, where necessary, be able to resolve any conflicts that arise in
practice between the ACC Values and provide further clarification on
their operation in relation to particular situations or deployments.
31. Subclause (2) makes clear that the ACC Values will have effect subject
to any restrictions contained in the directions.
Clause 14 - Director-General must uphold and promote the Australian
Civilian Corps Values
32. This clause requires the Director-General to uphold and promote the ACC
Values.
Clause 15 - Australian Civilian Corps Code of Conduct
33. This clause provides for regulations to be made which will prescribe
the ACC Code of Conduct. It is intended that the ACC Code of Conduct
will be a public statement of the standards of behaviour and conduct
that are expected of ACC employees. It is proposed that the ACC Code
of Conduct will incorporate elements of the APS Code of Conduct and
will draw on the various overseas codes of conduct which already apply
in APS agencies which have employees on duty overseas (including
AusAID's Code of Conduct for Overseas Service).
34. Subclause (2) provides that the ACC Code of Conduct must include a rule
that ACC employees must at all times behave in a way that upholds the
ACC Values.
35. Subclause (3) makes clear that the ACC Code of Conduct will apply to
all ACC employees.
Clause 16 - Director-General's directions about the Australian Civilian
Corps Code of Conduct
36. This clause provides that the Director-General may issue directions in
relation to the ACC Code of Conduct. Any directions that are issued by
the Director-General will be a legislative instrument for the purposes
of the Legislative Instruments Act 2003.
37. Directions may be issued for the purpose of determining the scope or
application of any particular provision of the ACC Code of Conduct. In
this way the Director-General will, where necessary, be able to resolve
any conflicts that arise in practice between the provisions of the Code
and provide further clarification on their operation in relation to
particular situations or deployments.
38. Subclause (2) makes clear that the ACC Code of Conduct will have effect
subject to any restrictions contained in the directions.
Clause 17 - Breaches of the Australian Civilian Corps Code of Conduct
39. This clause allows the Director-General to impose various sanctions on
an ACC employee who is found, in accordance with the relevant
procedures made under subclause (3), to have breached the ACC Code of
Conduct. The available sanctions will be: termination of employment;
re-assignment of duties; deductions from salary, by way of fine; and a
reprimand.
40. Subclause (2) makes clear that the Director-General's power to impose
sanctions will be subject to any limitations set out in the
regulations. For example, the regulations may limit the amount that
may be deducted from an employee's salary, by way of a fine.
41. The sanctions are modelled on those available under section 15 of the
PS Act for a breach of the APS Code of Conduct. However, a reduction
in classification or salary (as opposed to a deduction from salary)
were intentionally not included as these were not considered
appropriate given the short-term nature of most ACC employment.
42. Subclause (3) requires the Director-General to establish procedures for
determining whether an ACC employee has breached the ACC Code of
Conduct.
43. Subclause (4) provides that the procedures may also set out matters to
be taken into account in determining the sanction to be imposed on an
ACC employee who has been found to have breached the ACC Code of
Conduct.
44. Subclause (5) makes clear that subclause (4) does not limit subclause
(3).
45. Subclause (6) provides that the procedures:
. must have due regard to procedural fairness;
. may be different for different categories of ACC employees; and
. must entitle an ACC employee to an internal AusAID review of the
following decisions:
o a decision that the employee has breached the ACC Code of
Conduct; and
o a decision to impose a sanction on the employee.
46. There are two fundamental principles of procedural fairness; the
hearing rule and the bias rule. The hearing rule requires a decision-
maker to give an opportunity to be heard to a person whose interests
will be adversely affected by the decision. The bias rule requires a
decision-maker to be disinterested or unbiased in the matter to be
decided.
47. By providing that the procedures may be different for different
categories of ACC employees, the clause provides flexibility for
managing alleged breaches of the ACC Code of Conduct. For example, for
particular deployments the procedures may provide that some allegations
do not need to be investigated 'in-country'.
48. Subclause (7) permits the instrument made under subclause (3) to
provide for exceptions to the entitlement to a review of a decision.
These exceptions might include where the application for review is
frivolous or vexatious.
49. Subclause (8) requires the Director-General to take reasonable steps to
ensure that every ACC employee has ready access to the documents that
set out the procedures.
50. Subclause (9) makes clear that an instrument made under subclause (3)
may be varied by the Director-General in accordance with subsection
33(3) of the Acts Interpretation Act 1901 but the instrument may not be
revoked.
51. Subclause (10) provides that the procedures for determining whether an
employee has breached the ACC Code of Conduct will not be a legislative
instrument for the purposes of the Legislative Instruments Act 2003.
This provision is merely declaratory of the law and is not a
substantive exemption from the Legislative Instruments Act 2003.
Part 3 - Australian Civilian Corps employees
Clause 18 - Employer powers etc. of Director-General
52. This clause provides that the Director-General has, on behalf of the
Commonwealth, all the rights, duties and powers of an employer in
respect of ACC employees. The employer of the ACC employees is legally
the Commonwealth and this clause makes clear that the Director-General
is the person who can exercise the common law rights and powers of the
Commonwealth as employer and is the person who must perform the duties
of an employer. Amongst other things, the general powers of the
Director-General as an employer would include establishing appropriate
management arrangements for the ACC.
53. Subclause (2) permits regulations to be made which would confer other
rights, duties or powers in respect of ACC employees on the Director-
General.
Clause 19 - Engagement of Australian Civilian Corps employees
54. This clause provides for the Director-General to engage persons, on
behalf of the Commonwealth, as ACC employees. ACC employees may be
engaged for the purposes of performing or potentially performing duties
overseas, or performing duties in Australia that are incidental,
preparatory or ancillary to the performance or potential performance of
overseas duties. These incidental, preparatory or ancillary duties
might include undertaking training in Australia prior to a deployment
or attending debriefing after a deployment.
55. Subclause (2) makes clear that the engagement of ACC employees must be
for a specified term. This reflects the nature of deployments for ACC
employees which will be time-limited. There will therefore be no
ongoing ACC employees.
56. Subclause (3) permits the specified term to be extended but the
regulations may impose limitations on the extension of a term - for
example, the regulations could provide that an ACC employee's term may
not exceed 3 years or that an ACC employee's term may only be extended
twice.
57. Subclause (4) permits the Director-General to impose conditions on
engagement. These conditions may deal with probation, citizenship,
formal qualifications, security and character clearances, and health
clearances. Health clearances may include psychological clearances.
These conditions may be conditions which are required to be satisfied
before the employment commences or during the employment.
58. Subclause (5) makes clear that subclause (4) does not limit by
implication the conditions that may be applied to the engagement of an
ACC employee. As such, other conditions may also be imposed on
engagement.
59. Subclause (6) makes clear that a person may be engaged as an ACC
employee whether or not they are employed by the Commonwealth in some
other capacity or by another employer. This means that the doctrine of
inconsistent commissions would not operate to prevent a person from
being engaged as an ACC employee. However, this section does not imply
that a person who is already employed by the Commonwealth or another
employer has a right to take up an ACC engagement and to take leave
from their existing employment (but see clause 26 below regarding the
power to grant leave and clause 27 on the Prime Minister's directions
to Commonwealth employers).
Clause 20 - Remuneration and other conditions
60. This clause enables the Director-General to make, from time to time, a
written determination setting ACC employees' terms and conditions. A
determination may apply to an individual ACC employee or to a category
of ACC employees.
61. The legislative note to this subclause makes clear that the National
Employment Standards under the FW Act which provide certain minimum
entitlements to national system employees will apply to ACC employees.
62. Subclause (2) makes clear that a determination is of no effect to the
extent that it would reduce the benefit to an ACC employee of an
individual term or condition applicable to the employee under an
enterprise agreement.
63. The legislative note to this subclause informs the reader that a
determination will be of no effect to the extent that it purports to
reduce a benefit to an employee under the National Employment
Standards. This is because the Australian Civilian Corps Act will
operate subject to the FW Act.
64. Subclause (3) provides that a determination may apply, adopt or
incorporate without modification, any of the provisions of a fair work
instrument or a WR Act collective transitional instrument as in force
from time to time. This means that the determination could, for
example, incorporate particular provisions of the AusAID Enterprise
Agreement.
65. The legislative note to this clause informs the reader that a
determination may also apply, adopt or incorporate provisions of the
National Employment Standards. However, a determination will be of no
effect to the extent that it purports to reduce a benefit to an
employee under the National Employment Standards. This is because the
Australian Civilian Corps Act will operate subject to the FW Act.
Clause 21 - Assignment of duties
66. This clause provides that the Director-General may, from time to time,
determine the duties of an ACC employee, and the place or places that
the duties are to be performed. This enables the Director-General to
determine the duties and work location of an ACC employee, and to
change the employee's duties or work location during a deployment.
Clause 22 - Suspension
67. This clause provides for the making of regulations to deal with the
suspension of ACC employees from their duties. Regulations may be made
which provide for suspension from duty with or without pay.
68. This provision is necessary as there is no common law power for
employers to suspend employees from duty without pay. The regulations
may provide for suspension where, for example, an ACC employee is
suspected of breaching the ACC Code of Conduct.
Clause 23 - Termination of employment
69. This clause gives the Director-General the right to terminate the
employment of an ACC employee at any time. Termination must be by
written notice. The legislative note to this clause refers to the
rules and entitlements that apply to termination of employment under
the FW Act.
Clause 24 - Secondment of Australian Civilian Corps employees
70. This clause enables the Director-General to arrange for an ACC employee
to be seconded for a specified period to any body or organisation.
This includes secondments to international bodies or organisations such
as the United Nations.
71. There are at least two types of secondments that may occur under this
clause. First, an ACC employee may be assigned duties in the body or
organisation by the Director-General, but will not become an employee
of that body or organisation. Second, an ACC employee may be granted
leave without pay from their ACC duties to take up employment in the
body or organisation for the period of the secondment.
72. Subclause (2) provides that the Director-General may enter into an
agreement with the body or organisation in relation to the secondment.
The agreement could deal with matters such as the secondee's duties,
performance management, security requirements, managing misconduct and
reporting.
73. Subclause (3) provides that the Director-General may enter into an
agreement with an ACC employee in relation to their secondment to a
body or organisation. This includes a secondment undertaken where the
employee is granted leave without pay from their ACC duties. The
agreement could deal with matters such as the secondee's duties,
performance management, confidentiality, conduct requirements and
reporting.
74. Subclause (4) provides that the Director-General may terminate a
secondment by notice to the body or organisation.
75. Subclause (5) makes clear that a secondment does not affect the
secondee's status as an ACC employee or the application of the
Australian Civilian Corps Act to the secondee. This means, for
example, that the ACC Code of Conduct would continue to apply to an ACC
employee that is on secondment (subject to any directions issued by the
Director-General about the Code under subclause 16(1)).
76. Subclause (6) makes clear that this clause does not affect any rights,
powers or immunities that a secondee has by virtue of holding an office
or position to which they have been seconded. It also makes clear that
the clause does not affect the extent to which the secondee is subject
to obligations or liabilities in relation to discipline by virtue of
holding any office or position to which they have been seconded.
Clause 25 - Limitation on Ministerial directions to Director-General
77. This clause provides that the Director-General will not be subject to
direction by any Minister in relation to individual ACC staffing
decisions. This clause is intended to ensure the independence of the
Director-General in making these decisions.
Part 4 - Leave for the purposes of service in the Australian Civilian
Corps
Clause 26 - Power to grant leave for the purposes of service in the
Australian Civilian Corps
78. This clause gives an employer, at the request of an employee, the power
to grant the employee unpaid leave to allow the employee to serve in
the ACC.
79. This clause would operate to allow an employer to grant an employee
unpaid leave where the applicable industrial instrument or contract did
not provide for unpaid leave entitlements or imposed limitations on
accessing unpaid leave entitlements that impeded the employee's ability
to serve in the ACC.
80. Subclause (2) makes clear that this power to grant unpaid leave does
not replace any other power of an employer to grant unpaid leave.
Clause 27 - Prime Minister may issue directions about leave etc. to
Commonwealth employers
81. This clause gives the Prime Minister the power to issue directions
concerning the granting of leave to employees for the purposes of
service in the ACC and for any other purposes relating to the
participation of employees in the ACC. The directions may be given to
Commonwealth employers.
82. Commonwealth employer is defined as:
. a person who exercises the powers of an employer in relation to
employees of the Commonwealth;
o this category would include an Agency Head under the PS Act;
. a body corporate established by or under a law of the Commonwealth for
a public purpose who has employees;
o this category would include a body corporate such as the
Australian Government Solicitor;
. a wholly-owned Commonwealth company (within the meaning of the
Commonwealth Authorities and Companies Act 1997) who has employees;
o this category would include a company such as the Australian
Institute for Teaching and School Leadership Ltd.
83. The directions could require that Commonwealth employers grant leave to
their employees to allow the employees to undertake training relevant
to an ACC deployment or to undertake a deployment. The directions may
be given in relation to any other matter that relates to the
participation of employees in the ACC such as a direction regarding
recognition of an employee's service in the ACC or a direction about
the transition of employees back to their regular employment following
ACC service.
84. Subclause (3) provides that the directions must not relate to a
particular employee. This is consistent with the limitation on
Ministerial directions under clause 25.
85. Any directions that are issued by the Prime Minister under this clause
will be a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
Part 5 - Miscellaneous
Clause 28 - Payments in special circumstances
86. This clause enables the Minister to authorise the making of payments in
special circumstances that relate to, or arise out of, ACC employment.
This provision removes the need to use general 'act of grace' payment
arrangements in cases relating to ACC employment matters. For example,
to reimburse legal costs incurred by an ACC employee or to provide
payments where an ACC employee has suffered a detriment because of
incorrect advice.
87. Subclause (2) provides that the Minister will be able to authorise
payments of specific amounts or periodical payments.
88. Subclause (3) makes clear that payments may be authorised under this
clause even though they would not otherwise be authorised by law or
required to meet a legal liability.
89. Subclause (4) provides that an authorisation will not be able to be
made under this clause if it would involve, or be likely to involve, a
total amount of more than $100,000. This will ensure that where an
amount might exceed $100,000 it will have to be referred for decision
by the Minister for Finance and Deregulation under the general
arrangements for 'act of grace' payments by the Commonwealth.
90. Subclause (5) makes clear that conditions will be able to be attached
to any payment authorised by the Minister. If a condition is breached,
the payment will be able to be recovered by the Commonwealth as a debt
in a court of competent jurisdiction.
Clause 29 - Disclosure or use of personal information
91. The Information Privacy Principles (IPPs) contained in the Privacy Act
1988 (Privacy Act) provide, among other things, a legal framework for
the collection, storage, access and correction, use or further
disclosure of personal information by government agencies. The Freedom
of Information Act 1982 (FOI Act) also provides a mechanism for access
to, and correction of, personal information.
92. Personal information is defined widely in those Acts to mean
information or an opinion (including information or an opinion forming
part of a database), whether true or not, and whether recorded in a
material form or not, about an individual whose identity is apparent,
or can reasonably be ascertained, from the information or opinion.
93. This clause allows regulations to be made authorising the disclosure or
use in specific circumstances of personal information. The regulations
may also impose restrictions on the collection, storage, access, use or
further disclosure of information disclosed under the regulations.
94. These provisions will assist in the effective management of the ACC.
For example, the regulations could authorise the release of certain
personal information relating to ACC employees to contractors
performing people management functions for the ACC. Or, the
regulations could authorise the disclosure of certain personal
information to other employers of ACC employees such as information
relating to breaches of the ACC Code of Conduct by their employee.
Clause 30 - Delegations
95. Subclause (1) provides that the Minister may delegate any or all of his
or her powers or functions under the Act or the regulations to:
. another Minister;
. an SES employee or acting SES employee in AusAID;
. a person who holds an office or appointment under an Act.
96. Subclause (2) provides that the Director-General may delegate any or
all of his or her powers or functions under this Act, the regulations
or any other instrument made under this Act to an APS employee in
AusAID or an ACC employee. This will allow for greater flexibility in
the management of the ACC, both overseas and in Australia. This
approach is consistent with the ability of an Agency Head to delegate
powers and functions to an APS employee under the PS Act.
97. Subclause (3) provides that a delegate exercising powers or functions
must comply with any directions of the delegator.
98. Subclause (4) excludes from the power of delegation, any power to make,
vary or revoke a legislative instrument. These powers and functions
can only be exercised by the person on whom the power is conferred.
Clause 31 - Regulations
99. This clause provides that the Governor-General will have a general
regulation-making power in relation to matters required or permitted to
be prescribed, or necessary or convenient to be prescribed, for
carrying out or giving effect to this Bill.