Chapter 1Introduction and Key Issues
Introduction
1.1On 16 May 2024, the Senate referred the provisions of the Criminal Code Amendment (Protecting Commonwealth Frontline Workers) Bill 2024 (the Bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 20 June 2024.
1.2The referral of the provisions of the Bill followed a recommendation of the Senate Standing Committee for the Selection of Bills.
Conduct of the inquiry and acknowledgement
1.3In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to organisations and individuals, inviting them to make a submission by 3 June 2024. The committee received and published 6 submissions, which are listed at Appendix 1.
1.4The committee thanks those organisations who made submissions to the inquiry.
Structure and scope of the report
1.5This report firstly identifies the Bill’s key provisions and then examines key issues raised in relation to the Bill, before setting out the committee’s findings and recommendations.
Purpose of the Bill
1.6The Bill would amend the Criminal Code Act 1995 (the Criminal Code) to extend certain existing penalty provisions to Commonwealth frontline workers.
1.7In his second reading speech, the Hon Mark Dreyfus KC MP, Attorney-General, described the Bill’s purpose to be:
… to strengthen protections for Commonwealth frontline workers, who are increasingly subjected to acts of violence or aggression from members of the public. This violence and aggression can have devastating impacts on frontline workers and their families as well as on the broader safety and operation of Commonwealth workplaces.
1.8Consequently, the Bill seeks to ensure the penalty provisions for the offences of causing harm, and threatening to cause harm, to Commonwealth frontline workers ‘more closely reflect the seriousness of the offences and are sufficiently deterrent’.
1.9In doing so, the Bill implements recommendation 18 of the Services Australia Security Risk Management Review conducted by Mr Graham Ashton AM APM in July 2023 (the Ashton Review):
Consideration should be given to the creation of a national penalty provision and associated state and territory supportive amendments for the assault of a Commonwealth frontline worker.
Background
1.10The Ashton Review was commissioned by the Hon Bill Shorten MP, Minister for the National Disability Insurance Scheme and Minister for Government Services, in response to the alleged assault of a Services Australia employee at a service centre in May 2023. Mr Ashton was tasked with undertaking a security risk management review of Services Australia.
1.11Per the terms of reference, the Ashton Review considered the following matters, in relation to Services Australia:
the adequacy of the physical security measures;
whether improvement need to be made to Managed Service Plans; and
the adequacy and operations of the state criminal laws to maximise protections of staff, customers and the public including but not limited to the use of penalties and restraining orders or alike.
Mr Ashton was also tasked with reviewing a number of security and procedural measures in place in relation to Services Australia’s face-to-face centres.
1.12The Ashton Review made 44 recommendations aimed at improving Services Australia’s security and safety practices. Services Australia has undertaken to implement all 44 recommendations.
Key provisions of the bill
1.13The Bill comprises one schedule of amendments: Schedule 1 would amend sections 146.1, 147.1 and 147.2 of the Criminal Code relating to the offences of causing harm, and threatening to cause harm, to a Commonwealth public official.
Definition of ‘Commonwealth frontline worker’
1.14The Bill would create a new category of Commonwealth public official, a Commonwealth frontline worker, and inserts a definition into section 146.1 of the Criminal Code.
1.15A Commonwealth frontline worker would be a person:
(a)who is a Commonwealth public official, and
(b)who performs work requiring the person to deal directly (whether or not in person) with the public, or a class of the public, as a primary function of their role, and
(c)who is not a Commonwealth judicial officer or a Commonwealth law enforcement officer.
1.16The Explanatory Memorandum (EM) notes the definition is intended to capture, but is not limited to, the following Commonwealth public officials:
service centre staff and team leaders
security guards
call centre operators
inspectors and compliance officers
interpreters
public-facing staff in electorate offices
service staff at relief and emergency centres.
1.17The Bill also includes a provision that would allow for regulations to prescribe one or more categories of person who fall within the second limb of the definition.
Extending the existing higher penalty provisions
1.18The Bill proposes to extend the higher penalty provisions in sections 147.1 and 147.2 of the Criminal Code to Commonwealth frontline workers.
1.19Section 147.1(1) provides for an offence of causing harm to a Commonwealth public official with a maximum penalty of 10 years imprisonment. Where harm is caused to a Commonwealth judicial or law enforcement officer, the offence attracts a higher penalty of 13 years imprisonment.
1.20Section 147.2(1) provides for an offence of threatening to cause serious harm to a Commonwealth public official with a maximum penalty of 7 years imprisonment. Where the official is a Commonwealth judicial or law enforcement officer a higher penalty of 9 years imprisonment applies.
1.21To establish both offences, the person must have engaged in the relevant conduct because of the official’s status as a public official or because of conduct engaged in by the official in their capacity as a public official.
1.22Extending the higher penalty provisions for both offences to include Commonwealth frontline workers places these officials in the same category as Commonwealth judicial and law enforcement officers, and attracts the same aggravated penalties of 13 and 9 years imprisonment, as above.
1.23The Bill also proposes to allow offences committed under section 147.1 against a Commonwealth frontline worker to be determined summarily with the consent of the defendant, prosecutor and if the court is satisfied that it is proper to do so.The Criminal Code already allows for offences committed under this section against a Commonwealth judicial or law enforcement officer to be determined summarily (i.e. before a single judge instead of a judge and jury).
Key issues
1.24All submitters were supportive of the Bill, particularly as it implements recommendation 18 of the Ashton Review.
1.25Services Australia noted the Bill complements work it is undertaking to improve protections for workers and customers.
Increased level of violence and aggression
1.26Most submitters highlighted the increased levels of violence and aggression that Commonwealth frontline workers are being subjected to.
1.27Services Australia, one of the main service delivery agencies of government, reported that, as at 31 December 2023 for the 2023-24 financial year, there had been ‘13,663 customer aggression incidents’ across all service channels.These incidents included physical assault, arson, objects thrown at workers, verbal abuse and property damage.
1.28The Community and Public Sector Union (CPSU) observed that ‘[a]ggression towards Commonwealth frontline employees is not a new phenomenon’ but that relevant CPSU members have reported that incidents have occurred ‘with greater frequency and intensity than before the COVID-19 pandemic’.
1.29The Australian Electoral Commission (AEC) submitted that the security environment in which electoral workers operate is deteriorating, noting it has seen a ‘marked increase in those questioning elements of democracy, legitimacy of government agencies and electoral processes and in turn undermining trust in electoral officials and workers’. The AEC reported this has an impact on current and prospective AEC employees as well as the community, from which the commission draws a large temporary workforce during federal elections.
1.30Further on the impact of the violence and aggression on workers, Services Australia stated that customer aggression reduces ‘operational capacity and capability’ as well as impacts health and wellbeing and injury claims.
1.31On this point, the Attorney-General’s Department (AGD) submitted:
The safety and operation of Commonwealth workplaces is impacted by violence and aggression, jeopardising the safety of workers and members of the public and disrupting the delivery of essential government services.
1.32The Bill aims to directly address this, as AGD submitted:
…these amendments will contribute to improving the safety of Commonwealth workplaces for everyone, including vulnerable members of the community and others seeking government support during difficult times.
1.33Similarly, Services Australia submitted that:
The Bill will act as a general deterrent for customer aggression and will send a strong message to our frontline workers that their safety is valued by the Commonwealth, and the risk associated with their work is recognised in law.
Definition of ‘Commonwealth frontline worker’
1.34The Bill’s definition of Commonwealth frontline worker focuses on the nature of the duties a public official may carry out, not on their role. It is also not limited to specific Commonwealth department or agencies.
1.35The CPSU submitted that a range of government employees would fall under this definition. Services Australia also stated that the definition would include workers beyond its workforce.
1.36AGD advised that the definition was drafted in this way because:
Focusing on the nature of the role being performed ensures the definition is not overly prescriptive and reflects the diversity of Commonwealth frontline worker roles, from service delivery to regulatory functions.
1.37Workers that deal with the public not in-person are also covered by the definition (see paragraph 1.15). The inclusion of non-in person dealings aligns with the CPSU’s submission, which reported that ‘service delivery staff who operate within telephony environments and call centres also experience significant customer abuse and threatening behaviour’.
1.38Commenting on the breadth of the definition, the Commonwealth Director of Public Prosecutions (CDPP) was of the view that it captures a ‘potentially wider’ group of officials than the categories of persons listed in the Bill’s EM (see paragraph 1.16). The Bill’s EM states that this is the intention.Regardless, the CDPP did not consider there to be any unintended consequences from inserting this definition into the Criminal Code.
Regulations
1.39The Bill would allow for categories of persons, who are taken to perform work that requires them to deal directly with the public, to be prescribed in regulations.
1.40AGD stated that this provision of the Bill would:
…ensures that the Bill is responsive to the changing nature of Commonwealth roles and work functions, providing for more effective protection of Commonwealth frontline workers.
1.41The CPSU submitted that given the nature of their work, AEC electoral workers and Members of Parliament Staff should be prescribed as frontline workers in the regulations. The AEC also submitted that all AEC staff should be prescribed in the regulations as it noted there is the potential for all AEC staff to be required to carry out public-facing roles.
Extending the existing higher penalty provisions
1.42Extending the higher penalty provisions to Commonwealth frontline workers for causing harm, and threatening to cause harm, to a Commonwealth frontline worker, creates a national penalty provision for Commonwealth frontline workers with an aggravated penalty.
1.43The CPSU supported the creation of a national penalty provision whereby ‘threats of harm against or assault of a Commonwealth frontline worker will attract the same penalty as those’ against Commonwealth judicial or law enforcement officers. The union also submitted these increased penalties could provide additional deterrence and ‘result in safer workplaces’.
1.44The extension of the higher penalty provisions to Commonwealth frontline workers, according to the AEC:
…appropriately recognises the important roles these workers play in servicing Australians and responds to the heightened risks to safety faced by Commonwealth workers in government service delivery, compliance and other public facing roles such as election service delivery.
1.45AGD submitted this ‘signals to the community that such violence and aggression is not acceptable and will be met with serious penalties’.
1.46The CDPP considered there to be no unintended consequences from extending the existing higher penalty provisions to Commonwealth frontline workers.
1.47Services Australia noted other jurisdictions have introduced additional penalty provisions for assaulting a frontline worker. According to findings in the Ashton Review:
…anecdotally, the publication of these provisions have acted as a deterrent on many occasions and, most importantly, sends a strong signal to the community and frontline workers that they are valued, and their safety is prioritised.
1.48On the ability to determine offences under section 147.1(1) against a Commonwealth frontline worker summarily, the CDPP noted the ‘applicable jurisdictional maximum penalty is 2 years’ imprisonment and/or a fine not exceeding 120 penalty units’. Ordinarily, if the Bill were to pass, the maximum penalty would be 13 years imprisonment.
1.49The AEC remarked that while it is supportive of the Bill, some threats to the safety of electoral workers may not meet the legal thresholds for these offences and it would welcome Parliament’s consideration of whether offences relating to electoral workers remain fit for purpose.
Committee view
1.50The Criminal Code Amendment (Protecting Commonwealth Frontline Workers) Bill 2024 aims to increase protections for Commonwealth frontline workers by increasing the penalties for causing harm, or threatening to cause harm, to these workers. The Bill would implement recommendation 18 of the Ashton Review and aims to address the increased violence and aggression experienced by Commonwealth frontline workers.
1.51The committee acknowledges the right for everyone to feel safe at work and is concerned about the current risks to the safety of Commonwealth frontline workers. It is of the view that measures aimed at protecting frontline workers from harm are an important part of the response and ensuring everyone feels safe at work, now and into the future.
1.52The committee regards the definition of ‘Commonwealth frontline worker’ to be fit for purpose given its focus on the nature of the duties carried out and the ability for regulations to prescribe workers who deal directly with the public, for the avoidance of doubt. The definition is broad, and the committee considers it will effectively cover Commonwealth public officials who deal directly with the public, regardless of their job title.
1.53The committee considers the extension of the existing higher penalty provisions in sections 147.1 and 147.2 of the Criminal Code to Commonwealth frontline workers to be appropriate. Aligning the penalty for offences committed against Commonwealth frontline workers with that of Commonwealth judicial officers and Commonwealth law enforcement officers demonstrates to frontline workers, who undertake crucial work in service to the Australian community, that their safety is of paramount concern. This amendment would also provide a deterrent effect while ensuring the aggravated penalty remains consistent across all three categories of public official.
1.54The committee recommends that the Senate passes the Bill.
Senator Nita Green
Chair