Chapter 3
Provisions of the bill
Purpose of the Bill
3.1
The purpose of this bill is to establish the Australian Civilian Corps
(ACC) and create a legal framework for the employment and management of ACC
employees.[1]
Under the provisions of the bill, civilian specialists are to be engaged 'as a
new category of Commonwealth employee', to work in crisis environments overseas
for specific periods before returning to their regular employment'.[2]
The bill provides for terms and conditions and other employment arrangements
that are designed specifically for this unique kind of employment.
Overseas jurisdiction
3.2
Clause 8 provides that the bill will apply to all actions, omissions,
matters and things overseas. This clause expressly extends the application of
the bill to things that take place outside Australia.[3]
The Director-General
3.3
If enacted, the bill would confer responsibility on the Director-General
of AusAID, under the Minister for Foreign Affairs, for managing the ACC. On
behalf of the Commonwealth, the Director-General would have 'all the rights,
duties and powers of an employer in respect of ACC employees'.[4]
Employees
3.4
Clause 19 provides for the Director-General to engage persons as ACC
employees. They may be engaged for the purposes of performing or potentially
performing duties overseas, and/or performing duties in Australia that are
incidental, preparatory or ancillary to the performance or potential
performance of overseas duties. According to the Explanatory Memorandum, these
duties might include undertaking training in Australia prior to a deployment or
attending debriefing after a deployment.[5]
3.5
The bill states that ACC employees must be engaged for a specified
period, which can be extended subject to limitations prescribed by regulations.[6]
For example regulations could be promulgated under this provision, imposing a
limitation of 3 years on the term of employment or restricting to two the
number of times an employee’s term could be extended.[7]
According to the Explanatory Memorandum, these provisions reflect the time-limited
nature of deployments for ACC employees. There would be no ongoing ACC
employees.[8]
3.6
The provisions of the bill allow for a person employed by the
Commonwealth in another capacity to be engaged as an ACC employee. People who
are not Commonwealth public servants are also eligible for employment with the
ACC.[9]
The ACC register
3.7
As noted in the previous chapter, AusAid has created a register that
will be developed over the next four years. The Office of the Australian
Civilian Corps has responsibility for maintaining the register, for recruiting
and preparing specialists for overseas deployment and managing the deployments.
In its submission, the CPSU noted the lack of detail about the operation of
this register and asked:
Who is eligible to apply for the register? Does it have an
expiry date? What is the relationship of someone on the register to the Commonwealth
or AusAID Director General? Who maintains the register? Who decides who is on
the register? Is there really to be a register? If so, the register and details
about its operation need to be included in the Bill.[10]
3.8
The committee notes that an AusAID publication, The Australian
Civilian Corps, Supporting stabilisation and recovery from disaster and
conflict, provides information about the register, and gives some
indication of the personnel who would be eligible to register. AusAID also has
information on its website about the Corps, and the people it is looking to place
on the register. It explains that specialists would be chosen for inclusion on
the deployment register based on their expertise and demonstrated experience in
relevant areas. It notes that they would 'require personal attributes
appropriate for deployment into difficult environments such as self-reliance,
flexibility, cross-cultural sensitivity and resilience and would undergo
medical and police checks. AusAID provides a comprehensive list of the
technical expertise needed. Through its website, AusAID also invites interested
people to contact the agency for more information.[11]
3.9
The committee is satisfied with the information available on the
register and does not see the need for the proposed legislation to include detail
on this matter.
Conflicts of interest
3.10
When referring the bill for inquiry, the Senate Selection of Bills Committee
identified potential conflicts of interest arising from AusAID selecting
civilian specialists who may be AusAID employees as a matter for consideration.[12]
3.11
The Australian Public Service Commission was of the view that the
existing procedures applying to the Australian Public Service (APS) were
'sufficient for the Office of the Australian Civilian Corps to apply in the
selection and management of personnel on the ACC register'. It noted that
disallowing AusAID staff to be included on the register 'could be detrimental
to the overall objectives of the Australian Civilian Corps'.[13]
3.12
The committee accepts that making AusAID officers ineligible for
engagement with the Corps would be both unfair to these officers and
unnecessarily deny ACC the opportunity to engage AusAID officers with the
required expertise and experience. To remove the risk of real or apparent conflicts
of interest arising, the committee suggests that the Australia Government
ensure that the selection process is transparent, without patronage or
favouritism and based on merit. Further, that the values and code covering the
conduct of ACC employees provide appropriate advice and directions on recruitment
and selection procedures (see also paragraphs 3.17 and 3.55–56).
Statement—humanitarian and development objectives
3.13
Although it welcomed the creation of the ACC, World Vision Australia
(WVA) observed that some of the most important aspects of the proposed
legislation were yet to be produced, including the ACC Values and the Code of
Conduct. It noted:
As a highly visible new element of Australia’s aid program,
the ACC needs to be seen to be part of AusAID and to be fully aligned with
Australia’s international development and humanitarian objectives. While noting
that the detail of this alignment will be described in the ACC Values, Code of
Conduct or other operational guidelines, WVA considers that a clause should be
inserted into the draft bill to describe the purpose of the ACC.[14]
3.14
World Vision Australia suggested that the legislation should 'specify
the purpose of the ACC with regard to the achievement of Australia’s
humanitarian and development objectives'.[15]
3.15
The committee notes that the Public Service Act 1999 provides, as
one of its objectives, a central guiding principle—'to establish an apolitical
public service that is efficient and effective in serving the Government, the
Parliament and the Australian public'.[16]
Although not necessary, the committee can see value in the proposed legislation
making a clear statement on the overarching principle and objectives governing
the operation of the ACC.
Recommendation 1
3.16
The committee recommends that the bill include a statement on the
humanitarian and development purpose for establishing the Australian Civilian
Corps.
ACC values and code of conduct
3.17
AusAID noted that ACC personnel would be required to adhere to a set of
values 'tailored to the particular role of the ACC in assisting countries
recover from disasters and conflict'. The values would provide the philosophical
foundations for the ACC, set out the principles, standards and ethics to be
embodied by the Corps and articulate its culture and operating ethos. They are also
intended to 'guide personnel and underpin the Civilian Corps operations'. The
Explanatory Memorandum stated that the values would be based on the APS Values,
but designed 'to reflect the unique nature of the ACC and its overseas working environment'.[17]
According to AusAID, the values would also help inform selection processes.[18]
3.18
The bill does not elaborate on these values but clause 12 provides for
regulations to be made that will prescribe them. Further, under clause 13, the
Director-General may issue, by legislative instrument, directions in relation
to the values for the purposes of determining their scope or application.[19]
3.19
There is also to be an ACC Code of Conduct that is to apply to ACC
employees.[20]
Again this code is not specified in the proposed legislation but the bill
provides for the promulgation of regulations that may prescribe the code.[21]
The Explanatory Memorandum stated:
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).[22]
3.20
The bill requires the code to include a rule that ACC employees must at
all times behave in a way that upholds the ACC Values.[23]
It also requires the Director-General to uphold and promote the ACC Values.[24]
3.21
The Australian Public Service Commission informed the committee that the
Office of the Australian Civilian Corps had agreed to consult with the
Commission on elements of the subordinate legislation that would govern the
Australian Civilian Corps operation, including the ACC Values and Code of
Conduct.[25]
3.22
In its submission, the Australian Red Cross, which has extensive
experience in providing humanitarian assistance, highlighted the importance of
the ACC having clearly defined values.[26]
In the committee's view, AusAID should also consult with the Australian Red
Cross in formulating its values and code of conduct.
3.23
The CPSU noted the proposal to link closely the ACC Values to those of
the APS and to base the ACC Code of Conduct on the APS and various overseas
codes already applying to APS agencies employing personnel on overseas duty. In
its view, this connection should be stated in the primary legislation to ensure
that the regulations reflect parliament's intention. In this regard, the
committee notes that the APS Values and the APS Code of Conduct are contained
in the Public Service Act. Given that the ACC Values and Code of Conduct are to
be promulgated under regulations, the committee supports the CPSU's
recommendations to amend clauses 12 and 15.
Recommendation 2
3.24
The committee recommends that a new subsection (2) be added to section
12 as follows:
(2) Regulations made under this Section must provide
that Australian Civilian Corps Values be consistent with the APS Values.
3.25 The committee recommends that a new subsection (1A) be added to
section 15 as follows:
(1A) Regulations made under
this Section must provide that Australian Civilian Corps Code of Conduct
incorporate the APS Code of Conduct and the AusAID Code of Conduct for Overseas
Service.
Breaches of code
3.26
The provisions of the bill contemplate that on occasion an ACC employee
may breach the ACC Code of Conduct. Under clause 17 of the bill, the
Director-General would be able to impose various sanctions on an ACC employee found
to have breached the code. Such sanctions would include: termination of
employment; re-assignment of duties; deductions from salary, by way of fine;
and a reprimand.
3.27
These sanctions are modelled on those applying to a breach of the APS
Code of Conduct but do not include a reduction in classification or in salary.
The Explanatory Memorandum noted that these measures were omitted as such
action was 'not considered appropriate given the short-term nature of most ACC employment'.[27]
3.28
Subclause 17(2) allows regulations to be made that may limit this power to
impose sanctions, for example, by placing a ceiling on the amount that may be
deducted from an employee’s salary by way of fine.[28]
Although this provision reflects the approach taken in section 15 of the Public
Service Act 1999, the Scrutiny of Bills Committee expressed concern about
the power to impose a fine. In its view, this power 'is granted in very wide
discretionary terms' and therefore sought the Minister's advice on whether some
limits to its exercise should be prescribed in the primary legislation.[29]
3.29
Failing an amendment to the bill that would place reasonable constraints
on the exercise of this power, the committee suggests that regulations made
under subclause 17(2) provide guidance on the circumstances that would warrant
a fine and on upper limits.
Right to review
3.30
When dealing with the right to review, the provisions governing breaches
of the code of conduct depart from those in the Public Service Act. Subclause
17(3) requires the Director-General to establish procedures for determining
whether an ACC employee has breached the code. These procedures are not a legislative
instrument.[30]
The provisions of the bill also allow for procedures that set out matters to be
taken into account when determining a sanction.[31]
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:
-
that the employee has breached the ACC Code of Conduct; and
-
to impose a sanction on the employee.[32]
3.31
Subclause 17(7) allows the Director-General to provide exemptions to the
entitlement to an internal review relating to decisions on breaches and
sanctions. As an example, a note to this subclause explains that the instrument
might provide that there is no entitlement to review 'if the application for
review is frivolous or vexatious'.
3.32
The Public Service Act also allows for exemptions to review but requires
that any such exemptions must be made under regulation and hence subject to
Parliamentary scrutiny. In addition, the Public Service Act has provisions
which afford an APS employee greater protections when seeking a review. For
example, the committee notes that, while the Public Service Act allows for
regulations to prescribe exemptions to the entitlement to review, it requires
among other things for the regulations to:
...provide for an application for review to be referred to the
Merit Protection Commissioner if the applicant is not satisfied with the
outcome of an initial review within the responsible Agency.[33]
3.33
The committee is concerned about two critically important aspects of
clause 17. Firstly, there is no provision for an external review. Secondly,
the Director-General may impose sanctions for a breach of the Code of Conduct
and establish procedures for determining whether an ACC employee has breached
the Code including providing for exemptions to the entitlement for a review. Unlike
those in the Public Service Act, these procedures are not legislative
instruments.[34]
3.34
The Scrutiny of Bills Committee also raised concerns about the absence
of any form of external merits review and the possible inappropriate delegation
of legislative powers in the case of exceptions to the entitlement to review.
It stated:
...in the context of breaches of the Australian Civilian Corps
Code of Conduct, these [exceptions] are to be made by the Director-General and
are (by subclause 17(1)) declared not to be a legislative instrument. For this
reason, the power to provide for exceptions to the entitlement to review may be
thought to make rights unduly dependent upon (potentially) non-reviewable
decision.
The problem also gives rise to concerns that the power to
make exceptions is inappropriately delegated as it is not subject to
parliamentary scrutiny.[35]
3.35
The committee remains concerned about the wide discretionary powers that
clause 17 confers on the Director-General especially in respect of the rights
to a review and the absence of a provision allowing expressly for an external
merits review.
Recommendation 3
3.36
The committee recommends that consistent with the Public Service Act,
the bill require that exemptions to the entitlement to review be made under
regulations and subject to Parliamentary scrutiny.
Recommendation 4
3.37
The committee recommends that the bill include a provision that would
allow an ACC employee, following an adverse finding of AusAID's internal
review, to apply for the matter to be referred to an external merits review authority.
The committee suggests that this provision should be modelled on section 33 of
the Public Service Act.
Terms and conditions of employment
3.38
AusAID explained that deployed civilian specialists would receive a
remuneration package that reflected 'the particular conditions and hardships of
each deployment'.[36]
Under the bill, the Director-General may from time to time determine in writing
the remuneration and other terms and conditions of employment applying to an
ACC employee or employees.[37]
While clause 20 enables the Director-General to make determinations with regard
to ACC employees' terms and conditions, clause 9 states that the
Australian Civilian Corps Act would operate subject to the Fair Work Act.[38]
A note to clause 20 also makes clear that the National Employment Standards
under the Fair Work Act, which provide certain minimum entitlements to national
system employees, would apply to ACC employees.[39]
Equity
3.39
The CPSU acknowledged that the Director-General's discretion to set
terms of employment would be limited by the operation of the National Employment
Standards. It was concerned, however, that the bill 'appears to allow the
Director General to set employment conditions for Corps employees below minimum
standards applying to Commonwealth employees generally'. It recommended that:
The Bill must be amended to ensure that any direction under s.20(1)
provides no less than the remuneration and other conditions of employment
provided for in a Fair Work instrument and/or a WR Act collective transitional
instrument and other conditions which apply at that time to comparable employees
engaged by AusAID.[40]
3.40
The committee understands the CPSU's concerns to ensure that a benchmark
is set that would guarantee that remuneration and other conditions of
employment for an ACC employee would not fall below that of a comparable Commonwealth
employee.
3.41
The CPSU was also concerned about equity issues under the employment
arrangements specified in the Bill and the potential for Corps employees to be
on different wages and conditions. It stated:
If someone comes from outside the APS where their salary is
not maintained, they might be working on lower conditions than someone seconded
from an APS agency which does have salary maintenance. Conversely, should APS
employees on salary maintenance be more expensive than other employees, this
raises concerns about preference not being given to APS employees because of
the higher remuneration cost.[41]
3.42
It argued that these complex issues must be worked through before the
Bill is finalised.[42]
3.43
The committee agrees with the CPSU that issues around matters such as
equity need to be clarified. It recognises the difficulties, however, resolving
such matters, especially where the circumstances of each engagement and the
levels and types of skills required are so variable. The engagement of people
from the private sector is a further complicating factor. It is of the view
that the overarching policy governing the determination of employment
arrangements needs to be stated clearly and implemented consistently and fairly.
Transparency and access to information would enable potential applicants to
judge for themselves whether or not to accept the terms and conditions of their
employment.
3.44
As noted earlier, however, all employees enjoy the protections afforded
under the Fair Work Act.
Accrual of employment entitlements
3.45
The Public Service Commission was confident that officers transferring
from the Public Service Act to the ACC would not incur any loss of terms and
conditions, such as leave entitlements.[43]
The CPSU was not so convinced. With regard to matters such as superannuation,
it noted that for APS employees seconded to the ACC, 'consideration must be
given to the impact on these entitlements, with proper attention given to rectifying
any possible detriment for those in defined benefit schemes'. It recommended
that consideration must also be given to amending the bill to ensure that
employment by the ACC counts as service for all purposes.[44]
It argued that the same principle should apply to a private sector employee:
There is a lack of clarity regarding continuity of 'service'
if a private sector employee is given unpaid leave to work for the Corps. Does
a private sector employee who is on unpaid leave from their normal employment
to enable employment by the Corps still accrue Long Service Leave, redundancy
entitlements, personal and other accrued entitlements with their normal
employer during service with the Corps and how is that provided for under law?[45]
3.46
The CPSU explained that the Fair Work Act 2009 defines 'service and
continuous service' in relation to accrual of employment entitlements.[46]
It noted further that the Act 'provides that a period of unpaid leave or
absence to perform eligible community service is ‘service’ with the employer
who grants the leave without pay to enable the employee to perform the service.[47]
The Public Service Act sets out what constitutes eligible community service in
Division 8 of Part 2-2 and includes voluntary emergency management activity. In
the union's view, the Act appears to exclude the absence of an employee to
perform voluntary emergency management activity if that community service is
paid employment.[48]
It argued:
As service with the Corps is paid, it appears that the Fair
Work Act protections provided to employees performing eligible community
service within Australia are currently not provided to employees taking up employment
with the Corps.[49]
3.47
The CPSU suggested that the government 'should either amend the Fair
Work Act 2009 or this Bill to ensure private sector employees are not disadvantaged
in relation to accrued entitlements when employed by the Corps'.[50]
Recommendation 5
3.48
The committee recommends that the government look closely at the
provisions governing accrued entitlements to ensure that employees who take up
employment with the ACC are not disadvantaged in respect of entitlements such
as superannuation, long service and annual leave.
Leave from regular employer
3.49
The bill provides for leave to be granted to a Commonwealth employee for
the purpose of employment with the Corps. Under clause 27, the Prime Minister may
issue directions to a Commonwealth employer in relation to the granting of leave
to Commonwealth employees for the purposes of service in the Corps.
3.50
The CPSU pointed out that the directions the Prime Minister may issue
under clause 27(2) are not dependent upon an APS employee actually requesting
leave without pay to work for the Corps. It argued that this arrangement was in
contrast to clause 26(1) which provides an employer (other than a Commonwealth
employer) may, at the request of an employee, grant unpaid leave to enable the
employee to take up employment with the Corps.
3.51
It recommended that 'this anomaly should be rectified to guard against
any suggestion that the government intends to allow Commonwealth employees to
be required to take leave to begin service with the Corps without requesting
such'.[51]
To remove any such doubt, the committee makes the following recommendation.
Recommendation 6
3.52
The committee recommends that paragraph 27(2)(a) of the bill be amended
to include the term 'at the request of the employees'. Paragraph 27(2)(a) to read:
(a) the granting of leave to
employees, at the request of the employees, for the purposes of service in the
Australian Civilian Corps.
Suspension or termination of
employment
3.53
The bill provides for regulations to be made dealing with the suspension
of ACC employees from their duties. In respect of terminating employment, the
bill provides for the Director-General to terminate the employment of an ACC
employee by written notice. Such actions are governed by the rules and
entitlements that apply to termination of employment under the Fair Work Act.[52]
The committee notes that the Public Service Act requires that a written notice
terminating the employment of an ongoing APS employee must specify the grounds
for termination.[53]
Given the significance of such a decision on an employee's reputation and
career prospects, the committee believes that, if an ACC employee's employment
with ACC is terminated, he or she should be entitled to know the reasons for
their dismissal.
Recommendation 7
3.54
The committee recommends that subclause 23(2) be added requiring the
notice to specify the ground or grounds that are relied on for termination.
3.55
The committee notes that the bill does not contain certain provisions
that are in the Public Service Act including provisions covering protection for
whistleblowers, prohibition on patronage and favouritism and promotion of
employment equity.[54]
In light of concerns expressed earlier about conflicts of interest and related
probity matters, the committee suggests that the bill incorporate these
sections from the Public Service Act.
Recommendation 8
3.56
The committee recommends that the government give consideration to
including in the bill provisions governing the protection of whistleblowers,
prohibition on patronage and favouritism and promotion of employment equity.
Safety and security—duty of care
3.57
When recommending that the provisions of the bill be examined, the
Selection of Bills Committee identified concerns relating to the protection of
ACC employees working overseas as matters for consideration.[55]
Subclause 19(4) permits the Director-General to impose conditions on engagement.
These conditions may deal with probation, citizenship, formal qualifications,
security, character and health clearances, which may include psychological clearances.
An employee may need to satisfy these conditions before employment commences or
during the employment.[56]
3.58
According to AusAID: 'A rigorous recruitment process will underpin the
selection of high calibre and experienced individuals', who would be required
to undergo 'medical, psychological and security checks'.[57]
They are to be selected on personal attributes appropriate to the environments
in which they would work and include cross-cultural sensitivity, flexibility, self-reliance
and resilience.[58]
AusAID explained that the safety of deployed civilian specialists would be a
priority and noted that 'during deployment planning, threat and risk
assessments will be prepared and appropriate arrangements for security will be put
in place'.[59]
3.59
The CPSU, however, expressed strong reservations about the occupational
health and safety aspects of the proposed legislation. It argued that while
deployed overseas, an ACC employee must have the same rights and obligations
that they would have under Australian law if employed in Australia. The CPSU suggested
that such rights and obligations should be protected in the proposed
legislation. In its assessment, however, it was not clear where the duty of
care resides. It stated:
The Bill appears to be part of a process of transitioning of
civilian public servants into roles traditionally occupied by defence
personnel, but without the health and safety support of defence organisations.
AusAID for example currently has one staff counsellor for all of its Australian
and overseas deployed personnel, and CPSU members advise that AusAID struggles
to meet its duty of care to ensure that those working in high pressure/ traumatic/unstable
situations are appropriately demobilised.[60]
3.60
In its view, there exists 'a significant risk for the government and for
AusAID' with this transition to the 'new way of doing business'.[61]
The Australian Red Cross also recognised the need for careful and specific
management when sending humanitarian and development specialists overseas to
provide technical assistance in times of crisis. From its extensive experience,
it produced a list of 'key learnings for deployees' that may assist in the
successful management of the ACC. They included obligatory pre-departure
briefing and preparation, including safety and security and in country support
whilst on deployment, including access to phsycosocial services.[62]
3.61
The committee notes that it raised a number of similar concerns in its
report on Australia's involvement in peacekeeping. The government's response to
recommendations in that report provide some insight into improvements made in mission
planning and the pre-deployment preparation of military and civilian personnel.
The government acknowledged the need for personnel to satisfy pre-deployment
training and the scope for further development and refinement of training
modules.[63]
It should be noted that the Australian Red Cross has developed 'expertise in
health and psychosocial support for deployees and such modules could be
tailored to the needs' of the ACC.[64]
Secondment of ACC employees
3.62
Subclause 24(1) allows the Director-General to arrange for an Australian
Civilian Corps employee to be seconded for a specified period to anybody or
organisation (including an international body or organisation). The CPSU held
concerns for ACC employees under these arrangements. It noted:
Seconded employees are likely to be engaged in overseas locations
suffering natural disaster or conflict. Such situations are often politically unstable
and provide less personal security than one would expect to enjoy in Australia.
When a Corps employee is seconded to another body or organisation, who controls
the employee and does the body or organisation have a duty to provide a safe
place and system of work, or does that duty remain with the Corps? This is a
critical issue which needs to be addressed.[65]
3.63
The CPSU argued further that Corps employees who are seconded to another
body or organisation should not suffer a reduction in remuneration or
conditions of employment (including the provision of appropriate accommodation
and security) during that secondment. It stated that this objective 'should be
guaranteed in the Bill rather than requiring individual employees to negotiate
the terms of the secondment'. It stated further:
Any Corps employee who is seconded must be provided with the
same rights and obligations they would have under Australian law if they were
employed within Australia. This is especially important in relation to
occupational health and safety, workers compensation, the ability to initiate
tort action, personal security, privacy, professional liability, due process in
dealing with disputes arising from the seconded employment and other employment
and civil rights.[66]
3.64
The committee notes that subclauses 24(5) and 24(6) appear to answer in
part the concerns raised about the status, responsibilities and obligations of
ACC employees seconded to another organisation. A secondment does not affect
the person's status as an ACC employee or the application of any provision in
the bill during the period of secondment. The Explanatory Memorandum stated
further that 'the ACC Code of Conduct would continue to apply to an ACC
employee who is on secondment'.[67]
Subclause 24(6) makes clear that a secondment does not affect any rights,
powers or immunities that a secondee has by virtue of holding any office or
position to which they have been seconded. Nor does a secondment 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.
3.65
The CPSU also noted that conflicts of interest 'may occur where a Commonwealth
employee is seconded to another body or organisation if the function of that
body or organisation is to deliver Corps projects'. It noted that this situation
'may result in Corps employees managing and delivering projects at the same
time which is clearly inappropriate'. It was of the view that the problem may
be addressed through the proposed ACC Values to be incorporated into the
proposed ACC Code of Conduct.[68]
3.66
While welcoming secondments as an important part of the ACC, World Vision
Australia was concerned that the terms of secondment 'leave the door open for
inappropriate deployments, particularly in humanitarian or emergency situations
in which the roles of civilian and military actors must be clearly defined'. It
recommended that clause 24 be amended 'to specify that secondments must be
consistent with the guidelines of the Australian Civilian Corps and other
international principles including those of principles of civil-military
cooperation'.[69]
3.67
The committee accepts that the Director-General should take every care
to ensure that an ACC employee is not being seconded to an organisation or into
a situation or taking on duties that would bring that employee into conflict
with the ACC Values or Code of Conduct. As an extra safeguard against any such
likelihood, the committee supports WVA's suggestion and makes the following
recommendation.
Recommendation 9
3.68
The committee recommends that an additional subclause be inserted in clause
24 stating that any arrangements for, agreements on and actual secondments
under this clause must be consistent with ACC Values and Code of Conduct and AusAID
Code of Conduct for Overseas Service.
3.69
The CPSU has raised a number of questions about the terms and conditions
of employment, and duty of care responsibilities for ACC employees seconded to
another organisation. The committee believes that the Australian Government
should review the provisions of the bill to ensure that a seconded ACC employee
is entitled to all the rights and protections afforded to an ACC employee. To
achieve this objective, the committee notes the CPSU recommendation that a new
subclause 24(3A) be inserted in clause 24 stating that, 'An Agreement made
under subsection (2) or (3) shall not reduce the remuneration or other
employment conditions of Australian Civilian Corps' employees'.[70]
Returning to employment after deployment
3.70
The Australian Public Service Commission was of the view that membership
of the Civilian Corps presented a unique development opportunity.[71]
Even so, the CPSU noted that for AusAID and other APS employees seconded to
work for the ACC there were 'concerns around whether their previous positions
will be available on their return'. In its view, this situation must be
clarified to ensure that employees return to their substantive position'. It
recommended that the bill be amended to 'provide the opportunity for APS
employees to return to their substantive position on the conclusion of the
period of service with the ACC'.[72]
3.71
The committee understands the importance of providing assurances to a
person who is transferring to the ACC that their substantive position would be
available to them on their return. Practical considerations and the inability
to predict future circumstances, such as a major agency or departmental
restructure, mean that such an assurance is difficult to give. The committee
believes, however, that an employee should be able to resume duties with their
home agency or department in a substantive position at level and without loss
of status or entitlements.
3.72
AusAID explained that the ACC would place a high priority on achieving a
'smooth and positive transition for returning civilian specialists back to
their workplace'. It referred to assisting employees readjust to normal life, by
providing medical and psychological debriefing and support arrangements. The
committee believes that AusAID also needs to give close attention to and
resolve matters relating to employment arrangements for ACC employees on their
return to ensure that they would not be disadvantaged because of their absence
due to service with the ACC.
Delegation of minister's power
3.73
Subclause 30(1)(c) would allow the Minister to delegate in writing any
or all of his proposed powers to 'a person who holds an office or appointment
under an Act'. The Scrutiny of Bills Committee expressed concern about
subclause 30(1) and the broad delegation of the Minister's power to 'a person
who holds an office or appointment under the Act'. It noted:
Where broad delegations are made, the Committee considers
that an explanation of why these are considered necessary should be included in
the explanatory memorandum. In this case, the explanatory memorandum simply
describes the effect of the provision and does not provide any explanation or
justification of it.[73]
3.74
The Scrutiny of Bills Committee sought the Minister's advice on this
matter so it could 'better assess whether the clause makes rights, liberties or
obligations unduly dependent upon insufficiently defined administrative powers'.[74]
Costs and logistics
3.75
When recommending that the provisions of the bill be referred for
examination, the Selection of Bills Committee identified concerns relating to
costs and logistics of the program as matters for consideration.[75]
3.76
The bill states that there are no direct financial impacts from this
bill which as noted earlier establishes an employment framework. There will be
costs, however, for the actual recruitment, employment and training of the 500
civilians. In 2009, AusAID announced that the government would provide $52
million 'to enable the rapid deployment of Australian civilians into overseas
disaster or conflict affected countries'.[76]
The provisions of the bill also do not cover the logistics of developing the
register and deploying civilians to overseas operations.
3.77
The committee recognises the ACC is in its infancy and that matters
relating to costs and logistics will become evident as the Corps continues to evolve.
Reporting obligations
3.78
The committee notes that the Government intends to have the ACC fully
operational by 2011. By that time, the values and the code of conduct should
have been issued. Their promulgation may satisfy some of the concerns raised by
World Vision and the CPSU and provide answers to questions about conflicts of
interest. The Director-General may also have issued directions or written
determinations that may clarify procedures relating to the scope or application
of the values and the code of conduct, the remuneration and other terms and
conditions of employment for ACC employees.
3.79
Unforseen or unintended consequences, if any, that arise as the ACC
becomes fully operational and the costs associated with the work of the ACC
should also start to become apparent. At this early developmental stage, the
committee believes that it is critical for the Director-General to provide a
comprehensive account of the ACC as it evolves and of any difficulties encountered
in implementing the provisions of the bill that may require legislative
refinements.
3.80
The Explanatory Memorandum notes that the ACC will not have its own
annual report but its activities will be included in AusAID's Annual Report.[77]
In light of the importance of informing Parliament about the activities of this
new and important body as it develops, the committee recommends that the
Director-General ensure that the report on the ACC is self contained, comprehensive
and assists parliamentary scrutiny.
Recommendation 10
3.81
The committee recommends that the Explanatory Memorandum be more explicit
on ACC's reporting obligations by specifying that the report on the activities
of the ACC will form a separate and discrete section in AusAID's Annual Report
and will include financial statements.
3.82
The committee also recommends that the Australian Government review the
operation of the ACC including the employment framework established under the
provisions of this bill no later than mid-2013 for the Minister to table in
Parliament.
Further consultation
3.83
The committee notes that the CPSU has requested that the government consult
with the union with regard to any amendments to the bill, the process of
finalising the bill and the employment arrangements of Corps employees
generally. In light of the expertise and the interest that the union has in
employment matters relating to public servants, the committee supports the
CPSU's suggestion. It also suggests that AusAID consult with the Australian Red
Cross not only on the ACC Values and Code of Conduct but the development of training
modules.
Conclusion
3.84
The committee has examined the provisions of the bill and identified a
number of concerns. The most serious deficiencies are around the issues of
protecting the rights of ACC employees from the exercise of inappropriate
delegated authority or the Director-General's wide discretionary powers.
Although the bill is modelled on the Public Service Act, there are notable
omissions and it is these important omissions that, in the committee's view,
leave some rights unnecessarily vulnerable particularly an ACC employee's right
to review.
3.85
The committee accepts that the ACC Values and ACC Code of Conduct may go
some way to allaying these concerns and urges the Australian Government to
ensure that these documents take account of the concerns identified in this
report. In other cases, the committee believes that the government should consider
amending the bill to ensure consistency with the Public Service Act and to put
beyond doubt queries about employment conditions especially in respect of
entitlements for review and accrued employment entitlements. The committee
notes its recommendation for more stringent reporting obligations and for a
review.
Recommendation 11
3.86
The committee recommends that, subject to consideration of the
committee's recommendations dealing with the provisions of the bill, the Senate
pass the bill.
Senator Mark Bishop
Chair
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