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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
AUSTRALIAN CIVILIAN CORPS BILL 2010
SUPPLEMENTARY EXPLANATORY MEMORANDUM
AND
CORRECTION TO THE EXPLANATORY MEMORANDUM
Amendments and
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
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. 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
Amendment 1
This amendment inserts the definition of 'Presiding Officer', which is a
term used in proposed new subclause 17A(11) (see Amendment 5 below).
Amendment 2
This amendment is an editorial amendment consequential to Amendment 3.
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).
Amendment 4
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).
Amendment 5
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.
Amendment 6
This amendment is an editorial amendment consequential to Amendment 7.
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.
Amendment 8
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.
Amendment 9
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.
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