Bills Digest No. 102, 2012–13

18 April 2013

Foreign Affairs Portfolio Miscellaneous Measures Bill 2013

Dr Nicholas Horne
Politics and Public Administration Section 

Date introduced: 13 March 2013

House: House of Representatives (the Bill passed the House on 19 March 2013)

Portfolio: Foreign Affairs

Commencement: On the day the Act receives Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Foreign Affairs Portfolio Miscellaneous Measures Bill 2013 (the Bill) is to amend the Intelligence Services Act 2001 (Cth) (IS Act) and the Work Health and Safety Act 2011 (Cth) (WHS Act)[1] to:

·         extend the application of provisions of the Public Service Act 1999 (Cth) (PS Act) governing the voluntary inter-agency movement of Australian Public Service (APS) employees to employees of the Australian Secret Intelligence Service (ASIS)[2]

·         entitle ASIS employees who move to APS agencies under the PS Act to have their ASIS employment treated as APS employment at a corresponding classification and

·         empower the Director-General of ASIS to declare, subject to ministerial approval, that particular provisions of the WHS Act do not apply or have modified application in relation to persons carrying out work for the Director-General.

Background

Mobility of APS employees

The mechanism enabling voluntary movements of APS employees between APS agencies is set out in section 26 of the PS Act. Under section 26 an Agency Head can enter into an agreement with an APS employee of another agency for the employee to move to the Agency Head’s agency (subsection 26(1)).

Such agreements have effect according to their terms, subject to the Public Service Regulations 1999 (subsection 26(2)). The Regulations further regulate movements according to whether they are ongoing or non-ongoing and whether, in the case of ongoing movements, the move is associated with promotion.[3] Subsection 26(2) of the PS Act has been amended by the Public Service Amendment Act 2013 (Cth) (due to commence on 1 July 2013). The amendment will mean that agreements made between APS employees and Agency Heads will be no longer be subject to the Regulations, but instead will be subject to Public Service Commissioner’s Directions made under the amended PS Act.[4]

Section 26 does not currently apply to movements of ASIS employees to APS agencies as ASIS staff are not APS employees under the PS Act (nor is the Director-General of ASIS an Agency Head for the purposes of the PS Act).[5] A complicating factor for ASIS employees wishing to move to APS agencies is the secrecy which attaches to ASIS employment; under the IS Act the identity of ASIS personnel cannot be disclosed except in specific circumstances (for example, in the case of the Director-General).[6] The second reading speech to the Bill notes that ASIS employees are ‘typically identified as public servants’, which can give rise to difficulties when ASIS employees wish to move into the APS:

In order to protect their identity ASIS officers are typically identified as public servants. However, this may have unintended consequences when an ASIS officer seeks to move to a public service agency as there is no obvious reason why a person identified as a public servant would not transfer under the Public Service Act like any other public servant.[7]

Application of the Work Health and Safety Act 2011 in the context of national security and defence

Currently the WHS Act provides that nothing in the Act ‘requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to Australia’s national security’ (subsection 12C(1)).

Under the WHS Act the Director-General of Security (the head of the Australian Security Intelligence Organisation, ASIO) may declare in writing that specified provisions of the WHS Act do not apply, or apply subject to modifications, in relation to a person carrying out work for the Director-General (subsection 12C(2)). Such declarations can only be made with ministerial approval and have effect according to their terms (subsection 12C(3)).

In making declarations under section 12C (and, more broadly, in administering ASIO), the Director-General of Security ‘must 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’ (subsection 12C(4)). Under the WHS Act written declarations made by the Director-General of Security under subsection 12C(2) are not legislative instruments (paragraph 273B(2)(a)).[8]

The Explanatory Memorandum for the WHS Act states that the purpose of section 12C is to ‘ensure that the [Act] is not prejudicial to Australia’s national security’[9], and also notes the potential breadth of declarations made by the Director-General of Security under section 12C:

The Director-General has discretion as to how declarations made under this provision are expressed, and 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.[10]

The WHS Act also empowers the Chief of the Defence Force (CDF) to make written declarations regarding the application of the WHS Act in relation to specified activities, or specified members of the Defence Force, or members of the Defence Force included in a specified class of such members (subsection 12D(2)). As is the case for the Director-General of Security, the CDF can only make such declarations with ministerial approval and the declarations have effect according to their terms (subsection 12D(3)).

In making declarations under section 12D the CDF ‘must take into account the need to promote the objects of [the WHS Act] to the greatest extent consistent with the maintenance of Australia’s defence’ (subsection 12D(4)). Under the WHS Act declarations made by the CDF under subsection 12D(2) are to be made by legislative instrument (paragraph 273B(1)(b)).

As is the case regarding national security, the WHS Act provides that nothing in the Act ‘requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to Australia’s defence’ (subsection 12D(1)).

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[11] The Government considers that the Bill is compatible.

Committee consideration

Parliamentary Joint Committee on Human Rights

In its consideration of the Bill the Parliamentary Joint Committee on Human Rights has raised some concerns regarding the proposed amendments to the WHS Act in light of their apparent restrictions on the right to work and the rights of trade unions under the International Covenant on Economic, Social and Cultural Rights and on other rights (specifically freedom of association and the right to life) under the International Covenant on Civil and Political Rights.[12]

The Committee intends to seek clarification from the Minister for Foreign Affairs on the necessity for the breadth of the proposed declaration-making power for the Director-General of ASIS and on ‘whether there would be any less restrictive means available to achieve the stated objective’.[13] The Committee will also seek clarification from the Minister on whether altering the application of the WHS Act in relation to those carrying out work for the Director-General of ASIS would impact on workers’ compensation claims for workplace injuries or diseases.[14]

Senate Selection of Bills Committee

The Senate Selection of Bills Committee considered the Bill in March 2013 and recommended that it not be referred to another committee for inquiry.[15]

Policy position of non-government parties/independents

The Opposition supported passage of the Bill in the House of Representatives.

Financial implications

The Explanatory Memorandum for the Bill states that the amendments have ‘no financial impact’.[16]

Key issues and provisions

Amendment of the Intelligence Services Act 2001—mobility of ASIS employees

The Bill proposes to extend the application of section 26 of the PS Act to ASIS employees as if they were APS employees and ASIS was an APS Agency (item 2, proposed subsection 36A(1) of the IS Act). As noted above, under section 26 of the PS Act an Agency Head can enter into an agreement with an APS employee of another agency for the employee to move to the Agency Head’s agency. Under the amendments ‘APS Agency’ would be defined in the IS Act to mean an Agency within the meaning of the PS Act (item 1, proposed amendment to section 3 of the IS Act).[17]

In addition, ASIS employees moving to APS agencies under section 26 would be entitled to have their ASIS employment treated as if it were APS employment, and at a corresponding classification as agreed between the Director-General of ASIS and the Public Service Commissioner (item 2, proposed subsection 36A(2) of the IS Act).

The effect of the mechanism proposed by item 2 would be that an ASIS employee wishing to move to an APS agency would be able to enter into an agreement with the relevant APS Agency Head and have their ASIS employment treated as APS employment for the purposes of the move at a corresponding classification. Further, as the Explanatory Memorandum notes, the treatment of ASIS employment as APS employment should assist in maintaining the secrecy of ASIS employment in relation to ASIS employees who move to APS agencies.[18] The Explanatory Memorandum also states that the amendments will ‘broaden the mobility opportunities for ASIS employees in the APS’,[19] and

… will ensure that ASIS levels have an equivalent APS level for 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).[20]

Currently under section 35 of the IS Act the Director-General of ASIS must adopt the principles of the PS Act in relation to ASIS employees to the extent to which the Director-General considers the principles are consistent with the effective performance of ASIS’s functions. The proposed new subsection 36A(2) does not seek to alter this requirement; the Explanatory Memorandum states that ‘ASIS’s recruitment and promotion policies are based on merit’ and that the ‘amendment does not detract from the APS merit principle in engagement’.[21]

Amendment of the Work Health and Safety Act 2011—declarations regarding application of the Act

The Bill proposes to empower the Director-General of ASIS to make written declarations that specified provisions of the WHS Act do not apply, or apply subject to modifications, in relation to a person carrying out work for the Director-General (item 3, proposed subsection 12C(2A) of the WHS Act). Such declarations could only be made with ministerial approval and would have effect according to their terms (item 4, proposed amendment to subsection 12C(3) of the WHS Act). The proposed power to make declarations regarding the application of the WHS Act would be identical to that currently possessed by the Director-General of Security under section 12C of the Act (see above).

The Explanatory Memorandum notes the potential breadth of declarations made by the Director-General of ASIS under the amendments:

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.[22]

The second reading speech to the Bill states that the WHS Act ‘already recognises that national security may not always be compatible with full compliance with [the WHS Act] and the need to ensure that national security is not prejudiced’, and that ‘full compliance could in some circumstances place people who work for the Director-General of ASIS at risk and prejudice national security’.[23] The second reading speech also states that ‘currently there is no mechanism to modify the operation of the [WHS] Act to people who perform work for the Director-General of ASIS’, and that the lack of a declaration-making power for the Director-General regarding the application of the WHS Act ‘is in contrast to the position of [ASIO] and the Australian Defence Force [ADF]’.[24] The second reading speech further notes that ‘[t]he environments in which ASIS operates overseas are very similar to the environments in which ASIO and the ADF operate’.[25]

The Parliamentary Joint Committee on Human Rights has raised some concerns regarding the proposed amendments and intends to seek clarification from the Minister for Foreign Affairs (see above).

The Bill would also require the Director-General of ASIS, in making declarations under the proposed new subsection 12C(2A) and, more broadly, in administering ASIS, to take into account the need to promote the objects of the WHS Act to the greatest extent consistent with the maintenance of national security (item 5, proposed subsection 12C(5) of the WHS Act). This would be congruent with current requirements placed on the Director-General of Security under subsection 12C(4) of the WHS Act. The Bill further proposes to insert a stipulation that written declarations made by the Director-General of ASIS under the amendments would not be legislative instruments (item 6, proposed amendment to paragraph 273B(2)(a) of the WHS Act). Again, this would be congruent with the current status of declarations made by the Director-General of Security under subsection 12C(2).

Appendix 1: Delegated Legislation and Disallowance

Legislative Instruments

The Legislative Instruments Act 2003 (Cth) (LI Act) defines ‘legislative instrument’ as ‘an instrument in writing that is of a legislative character’ that ‘is or was made in the exercise of a power delegated by the Parliament’.[26] An instrument has a legislative character if it determines or alters the content of the law rather than applying the law in a particular case; and if it directly or indirectly affects a privilege or interest, imposes an obligation, or creates, varies or removes an obligation or right.[27]

Delegated legislation is required to be laid before each House, thereby becoming subject to parliamentary scrutiny and to the Parliament’s ultimate power of veto.  Under section 38 of the LI Act, legislative instruments must be tabled in each House within six sitting days following registration on the Federal Register of Legislative Instruments, even in cases where the instrument is not disallowable. Unless laid before each House within this time limit, a legislative instrument ceases to have effect.[28]

Disallowance

Section 42 of the LI Act allows for the disallowance of legislative instruments by Parliament.

A legislative instrument can be subject to disallowance if either a Senator or Member of the House of Representatives moves a motion of disallowance within 15 sitting days of the day that the legislative instrument is tabled. The motion to disallow must be resolved or withdrawn within a further 15 sitting days of the day that the notice of motion is given. However, it should be noted that if there is no notice of motion to disallow a legislative instrument, then there is no debate about its contents.

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ISSN 1328-8091

[1].              The Intelligence Services Act 2001 and the Work Health and Safety Act 2011 are available at: http://www.comlaw.gov.au/Details/C2012C00199 (Intelligence Services Act 2001) and http://www.comlaw.gov.au/Details/C2013C00085 (Work Health and Safety Act 2011).

[2].              The Public Service Act 1999 is available at: http://www.comlaw.gov.au/Details/C2012C00319.

[3].              The Public Service Regulations 1999 are available at: http://www.comlaw.gov.au/Details/F2011C00638.

[4].              The Public Service Amendment Act 2013 is available at: http://www.comlaw.gov.au/Details/C2013A00002.

[5].              APS employees are employed under sections 22 or 72 of the PS Act; ASIS employees are employed under section 33 of the IS Act. For the purposes of the PS Act an ‘Agency Head’ is either: the Secretary of a Department; or the Head of an Executive Agency (Executive Agencies are established as such under section 65 of the PS Act); or the Head of a Statutory Agency (an Agency declared by legislation to be a Statutory Agency for the purposes of the PS Act). ASIS is not an Executive Agency as it is established on a statutory basis by section 16 of the IS Act, and it is not a Statutory Agency for the purposes of the PS Act as it is not so declared by the IS Act.

[6].              Under subsection 41(1) of the IS Act it is an offence to identify current or past ASIS staff or agents or to make public information from which the identity of ASIS staff or agents could reasonably be inferred or established except in specific circumstances; the maximum penalty is imprisonment for one year or 60 penalty units or both. Public disclosure of the identity of officers, employees and agents of the Australian Security Intelligence Organisation (ASIO) is also prohibited under section 92 of the Australian Security Intelligence Organisation Act 1979 (Cth) except in specific circumstances; the maximum penalty is imprisonment for one year.

[7].              R Marles (Parliamentary Secretary for Pacific Island Affairs and Foreign Affairs), ‘Second reading speech: Foreign Affairs Portfolio Miscellaneous Measures Bill 2013’, House of Representatives, Debates, 13 March 2013, p. 1844, viewed 17 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F004ccb33-581e-44b3-8c5c-bbb56bbc99f3%2F0028%22 

[8].              Further information on legislative instruments can be found at Appendix 1.

[9].              Explanatory Memorandum, Work Health and Safety Bill 2011, p. 13, viewed 17 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4626_ems_9a20f7d5-be26-4907-9887-b0a344b494ea%22

[10].              Ibid., pp. 13–14.

[11].              The Statement of Compatibility with Human Rights can be found at pages 3–5 of the Explanatory Memorandum for the Bill, viewed 17 April 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4978_ems_2fef7ef1-8003-4eee-8f2e-7220d3268964%22

[12].              Parliamentary Joint Committee on Human Rights (PJCHR), Fourth Report of 2013, PJCHR, Canberra, March 2013, pp. 39–41, viewed 17 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=humanrights_ctte/reports/index.htm

[13].              Ibid., p. 41.

[14].              Ibid.

[15].              Selection of Bills Committee (SBC), Report No. 3 of 2013, SBC, Canberra, March 2013, p. 4, viewed 17 April 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=selectionbills_ctte/reports/2013/rep0313.htm

[16].              Explanatory Memorandum, Foreign Affairs Portfolio Miscellaneous Measures Bill 2013, op. cit., p. 2.

[17].              ‘Agency’ is defined in section 7 of the PS Act to mean Departments, Executive Agencies and Statutory Agencies.

[18].              Explanatory Memorandum, p. 6.

[19].              Ibid.

[20].              Ibid., pp. 6–7.

[21].              Ibid., p. 7.

[22].              Ibid.

[23].              R Marles (Parliamentary Secretary for Pacific Island Affairs and Foreign Affairs), ‘Second reading speech: Foreign Affairs Portfolio Miscellaneous Measures Bill 2013’, op. cit., p. 1844.

[24].              Ibid.

[25].              Ibid.

[26].               Subsection 5(1). The Legislative Instruments Act 2003 is available at: http://www.comlaw.gov.au/Details/C2013C00032.

[27].               LI Act subsection 5(2).

[28].              See BC Wright ed., House of Representatives practice, sixth edn, Department of the House of Representatives, Canberra, 2012, pp. 410–18, viewed 17 April 2013, http://www.aph.gov.au/~/media/05%20About%20Parliament/53%20HoR/532%20PPP/Practice6/PDF/Chapters/6Chap10.ashx