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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FOREIGN AFFAIRS PORTFOLIO MISCELLANEOUS MEASURES
BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Foreign Affairs, Senator the Honourable Robert Carr)
FOREIGN AFFAIRS PORTFOLIO MISCELLANEOUS MEASURES BILL
2013
OUTLINE
This Bill makes amendments to the Intelligence Services Act 2001 and the Work
Health and Safety Act 2011.
In particular, the Bill will:
amend the Intelligence Services Act 2001 (IS Act) to create a mechanism for
Australian Secret Intelligence Service (ASIS) employees to move to an
Australian Public Service (APS) agency in the same way that APS employees
can voluntarily transfer from one APS agency to another under section 26 of
the Public Service Act 1999 (the PS Act);
amend the Work Health and Safety Act 2011 (WHS Act) to enable the
Director-General of ASIS, with the approval of the Minister responsible for
the WHS Act, to make a declaration that specified provisions of the WHS Act
do not apply, or apply subject to modification in relation to persons carrying
out work for the Director-General of ASIS.
FINANCIAL IMPACT
The amendments in this Bill have no financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Foreign Affairs Portfolio Miscellaneous Measures Bill 2013
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Bill makes legislative amendments to:
amend the Intelligence Services Act 2001 (the IS Act) to create a mechanism
for ASIS employees to move to an APS agency in the same way that APS
employees can voluntarily transfer from one APS agency to another under
section 26 of the Public Service Act 1999 (the PS Act);
amend the Work Health and Safety Act 2011 (WHS Act) to enable the
Director-General of ASIS, with the approval of the Minister responsible for
the WHS Act, to make a declaration that specified provisions of the WHS Act
do not apply, or apply subject to modification in relation to persons carrying
out work for the Director-General of ASIS.
Human rights implications
Two rights in relation to the right to work are engaged by this Bill:
Article 6 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR); and
Article 7 of the ICESCR.
The amendments to the IS Act contained in the Bill engage Article 6 of ICESCR.
Article 6 provides that States Parties to the Covenant recognise the right to work,
which includes the right of everyone to the opportunity to gain his living by work
which he freely chooses or accepts, and will take responsible steps to safeguard this
right.
The amendments to the IS Act create a mechanism for ASIS employees to move to an
APS agency in the same way that APS employees can voluntarily transfer from one
APS agency to another under section 26 of the PS Act. These will make an ASIS
employee who moves to an APS Agency under section 26 of the PS Act (as it applies
because of proposed section 36A(1)) an APS employee for all purposes.
These amendments promote the right to work in Article 6 of the ICESCR. These
amendments will make it easier for ASIS employees to meet their legal obligations
under the IS Act not to disclose their relationship with ASIS, and it will broaden the
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mobility opportunities for ASIS employees in the APS, by placing them in an
equivalent position to APS employees.
The amendments to the WHS Act contained in the Bill are compatible with Article 7
of the ICESCR. Article 7 of the ICESCR provides that State Parties to the present
Covenant recognise the right of everyone to the enjoyment of just and favourable
conditions at work. This right encompasses a number of elements, including safe and
healthy work conditions (Article 7(b)).
The amendments to the WHS Act will enable the Director-General of ASIS, with the
approval of the Minister responsible for the WHS Act, to make a declaration that
specified provisions of the WHS Act do not apply, or apply subject to modification in
relation to persons carrying out work for the Director-General of ASIS. In making a
declaration the Director-General of ASIS will be required to take into account the
need to promote the objects of the WHS Act to the greatest extent consistent with the
maintenance of Australia's national security.
While on its face these amendments may appear to restrict the right to safe and
healthy work conditions, these amendments are intended to provide legal clarification
to the operation of existing provisions of the WHS Act to people who perform work
for the Director-General of ASIS. Section 12C of the WHS Act already provides that
nothing in that Act requires or permits a person to take any action or refrain from
taking any action that would be, or could reasonably be expected to be, prejudicial to
national security. This is a long standing component of work health and safety
obligations in Australia, as an identical provision existed in the predecessor to the
WHS Act, the Occupational Health and Safety Act 1991.
However, currently under section 12C of the WHS Act, the Director-General of ASIS
is unable to make a declaration that specified provisions of the WHS Act do not
apply, or apply subject to modifications set out in the in declaration, in relation to
persons carrying out work for him or her. This means legal uncertainty currently
exists around the application of section 12C to people who perform work for the
Director-General of ASIS. These amendments will provide this certainty.
ASIS's current position is in contrast to the position of the Australian Security
Intelligence Organisation (ASIO) under section 12C, and the position of the
Australian Defence Force (ADF) which has a similar mechanism under section 12D
of the WHS Act to ensure that Act does not prejudice Australia's defence. These
mechanisms provide legal certainty to the people who perform work for these
agencies.
The circumstances in which ASIS operates overseas are very similar to those faced by
ASIO and the ADF. These circumstances mean that the requirements of national
security may not always be compatible with full compliance with all the obligations
under the WHS Act. Indeed full compliance could in some circumstances place
people who work for the Director-General of ASIS at risk and prejudice national
security.
ASIS employees, the Australian Public Service Commission, the Department of
Employment and Workplace Relations, the Attorney-General's Department and
Comcare were consulted in the preparation of the Bill.
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For the reasons set out above, this Bill is compatible with Article 6 of the ICESCR as
it promotes the right to work, and Article 7 of the ICESCR as it will provide legal
clarification to existing work health and safety obligations.
Senator the Honourable Robert Carr, Minister for Foreign Affairs
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NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. This clause provides for the Bill to be cited as the Foreign Affairs Portfolio
Miscellaneous Measures Act 2013.
Clause 2 - Commencement
2. This clause provides the Bill will commence on the day on which the Bill
receives Royal Assent.
Clause 3 - Schedules
3. This is a formal clause which makes it clear that the Bill will amend and repeal
other Acts as set out in the Schedules to the Bill.
Schedule 1
Amendments to Intelligence Services Act 2001
Item 1 -Section 3 - APS Agency
4. This item amends section 3 of the Intelligence Services Act 2001 (the IS Act)
to insert the definition of an APS Agency. An APS Agency means an Agency within
the meaning of the Public Service Act 1999.
Item 2 -After 36
5. This item amends Part 5 of the IS Act by inserting the new section 36A. Section
36A creates a mechanism for ASIS employees to move to an APS agency in the same
way that APS employees can voluntarily transfer from one APS agency to another
under section 26 of the Public Service Act 1999 (the PS Act). The provision will
make an ASIS employee who moves to an APS Agency under section 26 of the PS
Act (as it applies because of proposed section 36A(1)) an APS employee for all
purposes.
6. In order to protect their identity as an ASIS officer under section 41 of the IS
Act, ASIS employees are typically identified as APS employees. Without this
amendment ASIS employees are unable to transfer under section 26 of the PS Act. In
the ordinary course APS employees would transfer to other APS agencies under
section 26 and there is no obvious reason why an ASIS employee who is identified as
an APS employee would not transfer under this section. This measure will facilitate
the protection of an ASIS employee's identity as an ASIS officer. It will also broaden
the mobility opportunities for ASIS employees in the APS.
7. The Public Service Commissioner and the Director-General of ASIS will agree
on how ASIS classifications correspond to the APS classifications for the operation of
this provision. This will ensure that ASIS levels have an equivalent APS level for
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operation of this new provision and the other related aspects of the PS Act (for
example the special requirements in respect of merit that apply in relation to
promotion).
8. This amendment does not detract from the APS merit principle in engagement.
Under section 35 of the IS Act the Director-General must adopt the principles of the
PS Act in relation to employees of ASIS to the extent to which the Director-General
considers they are consistent with the effective performance of ASIS's functions. In
accordance with this obligation, ASIS's recruitment and promotion policies are based
on merit.
Amendments to Work Health and Safety Act 2011
Item 3 - After subsection 12C(2)
9. This item inserted after subsection 12C(2) inserts the new subsection 12C(2A),
which enables the Director-General of ASIS, with the approval of the Minister
responsible for the WHS Act, to make a declaration that specified provisions of the
WHS Act do not apply, or apply subject to modifications in relation to persons
carrying out work for the Director-General. Currently section 12C provides that
nothing in the WHS Act requires or permits a person to take any action, or refrain
from taking any action, that would be, or could be reasonably expected to be
prejudicial to Australia's national security. However, unlike the Director-General of
Security under section 12C(2), the Director-General of ASIS is unable to make a
declaration that specified provisions of the WHS Act do not apply, or apply subject to
modifications set out the in declaration, in relation to persons carrying out work for
him or her.
10. This amendment does not change the intention of section 12C or existing WHS
policy with regard to national security. Rather this amendment provides greater
certainty around the application of section 12C to ASIS's functions, in the same way
that certainty exists around its application to ASIO in relation to national security.
11. The Director-General has discretion as to how declarations made under this
provision are expressed. They are able to apply, for example, to specified workplaces
or premises where persons who carry out work for the Director-General do that work,
or to particular activities that persons who carry out work for the Director-General are
engaged in or to particular categories of persons.
Item 4 - Subsection 12C(3)
12. This item inserts (2A) after subsection 2 in subsection 12C(3) to provide that a
declaration made under the new subsection 12(2A) may only be made with the
approval of the Minister and, if made with that approval, has effect according to its
terms. The Minister is the Minister responsible for the WHS Act.
Item 5 - At the end of section 12C
13. This item inserted at the end of section 12C inserts the new subsection 12C(5),
which states that in administering ASIS and in the exercise of the power under the
new subsection 12(2A), the Director-General of ASIS must take into account the need
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to promote the objectives of the WHS Act to the greatest extent consistent with the
maintenance of national security.
Item 5 - Paragraph 273B(2)(a)
14. This item inserts (2A) after subsection 2 in paragraph 273B(2)(a). This provides
that a declaration made by the Director-General of ASIS under subsection 12C(2A) is
not a legislative instrument. Such a declaration would not be a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003. Therefore,
this provision has been included to assist readers. This is consistent with declarations
made by the Director-General of Security under section 12C(2).
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