Senate

Explanatory Memorandum

(Circulated by authority of the Minister for Justice, the Honourable Brendan O'Connor MP)

Schedule 1 - Amendments relating to ACC dismissal powers

GENERAL OUTLINE

The staff of the ACC deal with highly sensitive and classified information and the consequences of corruption or misconduct are very serious.

Under section 29 of the PS Act, the ACC CEO has the power to dismiss employees for serious misconduct or corruption. Section 29 allows the ACC CEO (as an agency head) to dismiss a member of the staff of the ACC under one of the following grounds:

•

the employee is excess to the requirements of the agency

•

the employee lacks, or has lost, an essential qualification for performing his or her duties

•

non-performance, or unsatisfactory performance, of duties

•

inability to perform duties because of physical or mental incapacity

•

failure to satisfactorily complete an entry-level training course

•

failure to meet certain conditions (for example, health or security clearance requirements)

•

breach of the Code of Conduct (this would include serious misconduct or corruption), or

•

any other grounds prescribed by the regulations (no other grounds are currently prescribed).

In its report on the ACC Annual Report of 2007-08, the PJC-ACC recommended 'that the Australian Government review existing arrangements for the suspension and dismissal of Commonwealth law enforcement agency employees believed on reasonable grounds to have engaged in serious misconduct or corruption, and that the Government take action as appropriate, bearing in mind the need to respect the rights of employees.' This followed a similar recommendation by the PJC-ACLEI in its report on law enforcement integrity models.

The PJC-ACC noted the dismissal power available to the AFP and stated that 'it is of concern to the committee that ACC employees suspected of serious misconduct or corruption remain within the organisation and may seek to jeopardise investigations, thereby potentially compromising the security of the ACC's operations.'

Under section 28 of the AFP Act, the Commissioner may at any time, by notice in writing, terminate the employment of an AFP employee. The Commissioner also has the power under section 40K of the AFP Act to declare that the employment of an AFP employee was terminated because the Commissioner believes on reasonable grounds that the employee's behaviour amounts to serious misconduct and is having, or is likely to have, a damaging effect on the morale or reputation of the AFP. Where a declaration has been made under section 40K, the FW Act (with the limited exception of some provisions) no longer applies to that dismissal. However, judicial review of the declaration can be sought.

This Schedule will amend the ACC Act and the TIA Act to provide the ACC CEO with powers mirroring those of the Commissioner to deal with serious misconduct and corruption. The primary effect of these changes will be that the ACC CEO will be able to make a declaration that the conduct of a member of the staff of the ACC, who has been dismissed under section 29 of the PS Act, amounts to serious misconduct. The declaration will disapply the FW Act in relation to the dismissal of that staff member.

Part 1 - Amendment of the Australian Crime Commission Act 2002

Australian Crime Commission Act 2002

Item 1

Subsection 4(1) of the ACC Act sets out the definitions that are relevant to the operation of the ACC Act. This item will insert a new definition of serious misconduct into the ACC Act. Serious misconduct , by a member of staff referred to in subsection 47(1) of the ACC Act, will have the meaning given by subsection 47A(8). A member of staff referred to in subsection 47(1) is a member of staff who is employed under the PS Act.

Subsection 47A will define serious misconduct as:

•

corruption, a serious abuse of power, or a serious dereliction of duty, by the staff member, or

•

any other seriously reprehensible act or behaviour by the staff member, whether or not acting, or purporting to act, in the course of his or her duties as such a staff member.

This definition is the same as the definition of serious misconduct in the AFP Act.

Item 2

This item will amend the ACC Act to provide the ACC CEO with the power to issue a declaration that a member of staff who has been dismissed has engaged in serious misconduct or corruption. The effect of the declaration will be to remove the operation of the FW Act in relation to that particular dismissal.

Section 47A

Subsection 47A(1) will set out the circumstances in which the new section 47A will apply. It will be modelled on section 40K of the AFP Act.

Section 47A will only apply where the CEO has terminated the employment of a member of staff referred to in subsection 47(1) of the ACC Act. The reference to termination by the CEO includes any termination by an SES member of the staff of the ACC who has been delegated the power to terminate a person's employment by the ACC CEO under section 59A of the ACC Act.

Staff referred to in subsection 47(1) are staff employed under the PS Act. While the definition of member of the staff of the ACC in subsection 4(1) of the ACC Act includes other categories of staff, such as seconded staff or consultants, the power in section 47A will not apply to these other members of staff. It will only apply to staff employed under the PS Act. Where the ACC CEO wishes to dismiss other members of the staff of the ACC who are not employed by the ACC under the PS Act, the ACC CEO will continue to rely on his or her current powers to remove that person from the organisation. For example, where the ACC CEO believes on reasonable grounds that a person seconded to work for the ACC has engaged in serious misconduct, the ACC CEO will continue to be able to remove that person from the ACC by ending their secondment.

To terminate a member of staff employed under subsection 47(1) of the ACC Act, the CEO will need to rely on the power of dismissal in section 29 of the PS Act. New section 47A will not provide an additional power of termination. It will rely on a termination having taken place under section 29 of the PS Act. This will be reflected in the note at the end of the subsection which refers to a termination under section 29 of the PS Act.

Subsection 47A(1) will state that for the section to apply, the CEO must believe on reasonable grounds that the staff member's conduct (the staff member who has been dismissed):

•

amounts to serious misconduct (a definition of serious misconduct will be inserted in subsection 47A(8)), and

•

is having, or is likely to have, a damaging effect on

-

the professional self-respect or morale of some or all of the members of staff of the ACC, or

-

the reputation of the ACC with the public, or with an Australian or foreign Government or law enforcement agency.

The belief that the CEO will be required to have for this section to apply mirrors the belief that the Commissioner must have before exercising his or her power to make a declaration under section 40K of the AFP Act. It limits the scope of the CEO's power to the most serious cases of misconduct or corruption. It is not designed to replace the usual public service processes for dealing with misconduct, but only to be utilised in circumstances where the normal processes are not appropriate given the nature of the misconduct or corruption.

Subsection 47A(2) will provide the CEO with the power to make a declaration where he or she is of the belief outlined in subsection 47A(1) (as described above). The declaration will need to relate to the staff member who has been dismissed and be made in accordance with the requirements which will be set out in subsection 47A(5).

Subsection 47A(3) will set out the effect of the declaration made by the CEO under subsection 47A(2). The making of the declaration will mean that the FW Act (except for Part 3-1 and Division 9 of Part 3-3) will no longer apply to either the termination of that staff member's employment, or the making of the declaration itself. This will mean that the unfair dismissal provisions and notice of termination provisions, among others, will no longer apply to the termination of the staff member's employment. Part 3-1 deals with general protections such as workplace rights. Division 9 of Part 3-3 deals with payments relating to periods of industrial action. These parts of the FW Act are also preserved when a declaration is made under the AFP Act.

Although the FW Act will not operate in relation to that person's termination and the making of the declaration, the making of the declaration will be a reviewable decision under the AD(JR) Act.

Subsection 47A(4) will specify that subsection 47A(3), which disapplies the majority of the FW Act operates despite section 8 of the PS Act. Section 8 of the PS Act states that the PS Act has effect subject to the FW Act. However, the effect of subsection 47A(3) will be to exempt a termination of employment under section 29 of the PS Act from the operation of the FW Act where a declaration is made under subsection 47A(2). This subsection will make it clear that the FW Act does not apply despite the operation of section 8 of the PS Act.

Subsection 47A(5) will set out the requirements that must be met by the ACC CEO when making a declaration under subsection 47A(3). The declaration must be made in writing. This will provide certainty as to the terms of the declaration. The declaration will also have to be made within 24 hours of the CEO's decision to terminate the staff member's employment. The 24 hours will start at the moment the ACC CEO (or his or her delegate) authorises the termination. This will also provide certainty as to the review rights available to a person after they have been dismissed. It would be unjust to allow the CEO to make such a declaration weeks after a dismissal has taken place to remove review rights of which the staff member may have already availed himself or herself.

Subsection 47A(6) will require the CEO to give a copy of the declaration to the staff member. This is another safeguard to ensure the staff member is made aware of the declaration that has been made in respect of his or her dismissal and the effect it will have on the availability of seeking review of the decision to terminate his or her employment. Section 28A of the Acts Interpretation Act 1901 states that for the purposes of any Act that requires or permits a document to be served on a person, whether the expression 'serve', 'give' or 'send' or any other expression is used, then, unless the contrary intention appears, the document may be served on a natural person by delivering it to the person personally by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document. The Electronic Transactions Act 1999 also provides that a requirement to produce a document (such as will be required under this subsection) can be met by doing so in electronic form.

Subsection 47A(7) will require the ACC CEO to report to both the Minister and the members of the ACC Board (as defined in subsection 7B(2) of the ACC Act) each time a declaration is issued under new subsection 47A(2).

The report will be required to include:

•

the grounds for why the CEO believed the staff member's conduct amounted to serious misconduct and is having a damaging effect on the ACC

•

the nature and findings of any investigation of, or inquiry into, the staff member's conduct or behaviour, and

•

details of any other matter the CEO considers relevant.

This will require the ACC CEO to provide an appropriate level of detail to enable both the Minister and the ACC Board to assess the use of the power by the ACC. This will ensure there is appropriate oversight of the use of the power by the ACC.

Subsection 47A(8) will insert a definition of 'serious misconduct' for the purposes of this section. The definition will mirror the definition of serious misconduct in section 40K of the AFP Act. It will mean:

•

corruption, a serious abuse of power, or a serious dereliction of duty, or

•

any other seriously reprehensible act or behaviour by a member of the staff of the ACC, whether or not acting, or purporting to act, in the course of his or her duties as a member of the staff of the ACC.

This definition will limit the power to make a declaration to the most serious abuse of power, position or the most serious cases of misconduct or corruption.

Item 3

This item will provide that the amendments made by this part only apply in relation to a decision to terminate a member of the staff of the ACC where that decision is made after the commencement of this item. This will prevent the power to make a declaration from being used in relation to a termination that took place prior to the power to make a declaration being in operation.

Item 4

Section 59A provides that the ACC CEO is able to delegate in writing any or all of his or her powers to an SES employee or acting SES employee.

This item will amend section 59A to limit the operation of the delegation making power to any or all powers except a power or function under section 47A. Section 47A, as inserted by item 2, will allow the ACC CEO to make a declaration stating that an employee was terminated because the CEO believed on reasonable grounds that the employee's behaviour amounts to serious misconduct and is having, or is likely to have, a damaging effect on the morale or reputation of the ACC. This item will amend section 59A to prevent the CEO from delegating the power to make a declaration under section 47A.

Part 2 - Amendment of the Telecommunications (Interception and Access) Act 1979

Telecommunications (Interception and Access Act) 1979

Items 5 and 6

Section 63 of the TIA Act places a general prohibition on the use of lawfully intercepted information ('lawfully intercepted information' is defined in section 6E of the TIA Act). For law enforcement agencies, the main exception to this prohibition lies in section 67, which allows an interception agency to make use of lawfully intercepted information for a 'permitted purpose', which is defined in section 5 of the TIA Act.

The current definition of permitted purpose includes specific provisions relating to the AFP. The TIA Act currently provides the AFP with the power to use lawfully intercepted information in:

•

the investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth, being an investigation or inquiry under a law of the Commonwealth or by a person in the person's capacity as an officer of the Commonwealth

•

a report on such an investigation or inquiry, or

•

the making by a person of a decision under the Australian Federal Police Act 1979 in relation to the termination of the employment of an AFP employee.

Although the TIA Act currently allows the ACC to use lawfully intercepted information in any 'proceeding' in so far as it relates to the alleged misbehaviour or alleged improper conduct of an officer of the Commonwealth, it does not extend to use in internal investigations by the ACC of alleged improper conduct or use in supporting action taken following such an investigation.

The PJC-ACC, in its report on the ACC Annual Report of 2007-08, noted the dismissal power available to the AFP and stated that 'it is of concern to the committee that ACC employees suspected of serious misconduct or corruption remain within the organisation and may seek to jeopardise investigations, thereby potentially compromising the security of the ACC's operations.

Items 5 and 6 give the ACC the power to use lawfully intercepted information in the same way as the AFP in investigating misconduct and making termination decisions. The items do not provide a power to intercept, only a power to use information that has already been lawfully intercepted.

Item 5

This item will amend the definition of permitted purpose in the TIA Act to align the powers of the ACC to use lawfully intercepted material with those available to the AFP when dealing with members of staff who are suspected of having engaged in misbehaviour or improper conduct. The amendments will ensure that the ACC is able to use and disclose information lawfully obtained under the TIA Act where appropriate and necessary in dealing with members of staff who have engaged in serious misconduct or corruption.

Section 67 of the TIA Act provides that an agency can only use lawfully intercepted information and interception warrant information for a permitted purpose. In relation to the ACC, permitted purpose is currently defined as a purpose connected with an ACC investigation or operation or a report on such an investigation or operation.

This item will amend the definition of permitted purpose in the case of the ACC to also include:

•

an investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of a member of the staff referred to in subsection 47(1) of the ACC Act

•

a report on such an investigation or inquiry

•

the making by a person of a decision in relation to the employment of such a staff member, or

•

a review (whether by way of appeal or otherwise) of such a decision.

This will allow the ACC CEO to use lawfully intercepted information in investigating any alleged misbehaviour or alleged improper conduct of a member of the staff of the ACC (employed under subsection 47(1)). It will also allow the ACC CEO to use that information to support a decision taken in relation to that staff member upon completion of the investigation including terminating the staff member. It will also allow the ACC CEO to use the lawfully intercepted information in making a declaration under new subsection 47A(2), which will be inserted by item 2.

Item 6

A further exception to the general prohibition on the use of lawfully intercepted information is set out in section 68 of the TIA Act. Whereas section 67 focuses on the internal uses of lawfully intercepted information by an agency, section 68 allows one agency to disclose to another agency lawfully intercepted information that is relevant to particular functions of the receiving agency.

This item will insert new paragraph (ca) into section 68. This new paragraph will allow the chief officer of an agency to communicate lawfully intercepted information to the CEO of the ACC if the information relates, or appears to relate, to an act or omission by a member of the staff of the ACC that may give rise to a decision by the CEO of the ACC to terminate the employment of that member of staff.

This item is not limited to members of the staff of the ACC who are employed under subsection 47(1) (public service employees) because the agency which originally obtained the information may not be in a position to know how that member of staff is employed by the ACC. However, once the information has been given to the ACC, the ACC will only be able to use that information to investigate a member of staff who is employed under the PS Act and not other members of staff (due to the effect of the provisions that will be inserted by item 5).

The amendments made by items 5 and 6 support the amendments made by item 2 to align the powers of the ACC CEO with those of the AFP Commissioner when dealing with serious misconduct and corruption. Due to the seriousness of the criminal activity being investigated by that organisation, some misconduct could lead to potentially life threatening consequences. It is important that the ACC is in a position to be able to properly investigate any allegations of misbehaviour, including utilising intercepted information where appropriate.

Item 7

This item will clarify that the amendments made to the TIA Act by items 5 and 6 will apply to any information obtained under that Act regardless of whether the information was obtained before or after the commencement of the items.

Part 3 - Review of amendments

Item 8

This item will require the Minister to cause an independent review of the operation of new section 47A as soon as possible after it has been in operation for two years. This will enable a full examination of the continuing need for the amendments.