Explanatory Memorandum
(Circulated by authority of the Minister for Justice, the Honourable Brendan O'Connor MP)Schedule 2 - Amendments relating to appointment of ACC examiners
GENERAL OUTLINE
This Schedule amends the ACC Act to allow for greater flexibility in the appointment of examiners. Currently, the provisions in the ACC Act which govern the appointment of examiners provide that:
- •
- an examiner must be appointed by the Governor-General following consultation with the IGC-ACC
- •
- a person can only be appointed as an examiner if they have been enrolled as a legal practitioner for at least five years
- •
- each appointment cannot be for longer than five years, but a person can only serve as an examiner for a total of ten years, and
- •
- the appointment of a person as an examiner is on a full-time basis.
The ACC Act also deals with:
- •
- remuneration of examiners
- •
- potential conflicts of interest
- •
- employment outside a person's duties as an examiner, and
- •
- termination of employment.
The requirements of the ACC Act do not meet the current operational needs of the ACC. In particular, the requirement that examiners be appointed on a full-time basis adversely affects the ACC's ability to effectively manage and conduct examinations.
The amendments will allow the ACC with to utilise full-time examiners as well as part-time examiners. This will allow the ACC to:
- •
- approach examinations in a more strategic way (for example, by drawing from a pool of examiners as operational needs require)
- •
- use different examiners for different purposes depending on the particular type of investigation or operation (for example, utilising different skills depending on the person being examined), and
- •
- appoint examiners in different regions of Australia.
The flexibility which this model provides will help the ACC attract people with the right capabilities to the position of examiner which will better support the work of the ACC and its partner agencies.
Australian Crime Commission Act 2002
Item 1
Subsection 46A(3) of the ACC Act currently provides that the CEO may make arrangements as to the examiner who is able to exercise his or her powers under the ACC Act in relation to a special ACC operation/investigation.
The inclusion of 'special' in this subsection does not accurately reflect all the functions an examiner can perform under the ACC Act. For example, sections 19A and 20 of the ACC Act provide examiners powers in relation to operations and investigations that have not been determined by the ACC Board to be 'special'.
This item will omit 'a special' and insert 'an' into subsection 46A(3). The effect of this amendment will be to enable the CEO to make arrangements with part-time and full-time examiners in relation to any ACC operation/investigation. This will allow for consideration of the special circumstances of each investigation or operation and the flexible and strategic allocation of part-time and full-time examiners. This will also enable the CEO to meet his or her obligation under subsection 46A(4) (as inserted by item 3) to notify the Minister of all such arrangements which are made with examiners.
Item 2
This item will clarify that the amendment made by item 1 does not affect an arrangement made by the CEO in relation to a special ACC operation/investigation under subsection 46A(3) of the ACC Act before the commencement of this item.
Item 3
This item will insert a new subsection into section 46A that requires the CEO to notify the Minister in writing of each arrangement that the CEO has made with examiners under subsection 46A(3). The CEO will have to report as soon as practicable after 31 June and 31 December on each arrangement made in the previous six months, as well as the nature of the ACC operation/investigation to which each arrangement relates.
The effect of this amendment will be to require the CEO to keep the Minister informed of the work engaged in by the ACC examiners in each six month period.
Item 4
This item will require the first report made under section 46A(4) (as inserted by item 3) to relate to arrangements made between the commencement of this item and the first 30 June or 31 December after that time.
The effect of this item will be to provide for timely notification of arrangements on the first occurrence of 30 June or 31 December after the commencement of this item, despite the initial period most likely being less than six months.
Item 5
Subsection 46B(4) of the ACC Act provides that an examiner may be appointed for a period of up to five years and that the sum of an examiner's periods of appointment and reappointment must not exceed 10 years.
This item will repeal the sentence in subsection 46B(4) which provides for a 10 year limit on the total of a person's periods of appointment as an examiner.
The effect of this amendment will be to allow for examiners to be reappointed without any limitation on the total time of appointment. However, the five year limit on each appointment will still be in force. This amendment will be consistent with the move to a flexible appointment model. It will also enable the ACC to take advantage of the experience that examiners can build up over a long period of time.
Item 6
This item will clarify that the amendment made by item 5 applies to the appointment of an examiner after the commencement of this item, whether or not the person has previously been appointed as an examiner.
Therefore, even if an examiner is currently or has been previously appointed, the 10 year limit will not apply to that examiner if he or she is reappointed after the commencement of this item.
Item 7
This item will insert a supplementary note to subsection 46B(4) to clarify that examiners are eligible for reappointment.
The effect of this amendment will be to clarify that references to the appointment of examiners in this subsection includes a reference to their reappointment, consistent with subsection 33(4A) of the Acts Interpretation Act 1901 . It may otherwise have been unclear that examiners could be reappointed after item 5 takes effect, as only the sentence repealed by item 5 made explicit reference to the reappointment of examiners.
Item 8
Subsection 46B(5) of the ACC Act currently provides that an examiner is to be appointed on a full-time basis. This item repeals subsection 46B(5) and inserts a new subsection which provides that examiners may be appointed on a full-time basis or on a part-time basis.
The requirement that examiners be appointed only on a full-time basis adversely affects the ACC's ability to effectively manage and conduct examinations. Allowing the appointment of part-time examiners will enable the ACC to approach examinations in a more strategic way, for example, by allowing the ACC to draw from a pool of examiners as operational needs require. It will also enable the ACC to use different examiners for different purposes depending on the particular type of investigation or operation being conducted. For example, this will give the ACC the ability to use examiners with particular skills in operations or investigations where such skills are necessary. This amendment will also allow examiners to be appointed in different regions of Australia.
Items 9 - 11
Section 46D of the ACC Act provides that examiners have recreation leave entitlements as determined by the Remuneration Tribunal, as well additional leave of absence entitlements (other than recreational leave) as determined by the CEO in writing.
Items 9 and 10
Items 9 and 10 will omit 'an examiner' and insert 'a full-time examiner' into subsections 46D(1) and (2).
The effect of these amendments will be to preserve the status quo in relation to leave of absence entitlements for full-time examiners.
Item 11
This item will insert a new subsection which entitles part-time examiners to leave of absence on terms and conditions determined in writing by the CEO.
Items 12 and 13
Section 46G prohibits examiners from engaging in paid employment outside the duties of their office without the Minister's approval.
These items retain the current provisions on outside paid employment in respect of full-time examiners and add provisions which address outside paid employment in respect of part-time examiners.
Item 12
This item will omit 'An examiner' and insert 'A full-time examiner' in section 46G. It will also insert the heading ' Full-time examiners' before the new subsection 46G(1).
The effect of this amendment will be to restrict the application of the prohibition against engaging in outside paid employment currently contained in section 46G to full-time examiners only. Due to the full-time nature of their appointment, it is not appropriate for full-time examiners to engage in outside employment without the Minister's approval.
Item 13
This item will insert new subsections 46G(2) and (3) into the ACC Act, which relate to part-time examiners engaging in outside employment.
Subsection 46G(2) prohibits part-time examiners from engaging in outside employment that, in the CEO's opinion, conflicts or may conflict with the proper performance of their duties as examiners.
The effect of this amendment is that part-time examiners are permitted to engage in outside employment, except where the CEO believes that it conflicts or may conflict with their office. The CEO may be of the opinion that a conflict exists where, for example, a part-time examiner holds a concurrent appointment as a director on the board of a company at the same time as the ACC is conducting an investigation or operation into criminal infiltration of that company. The CEO may also believe that a conflict exists, or may exist, where a part-time examiner's outside employment occupies their time in such a way and to such an extent that it substantially impacts on their availability to properly perform their duties as an examiner.
Subsection 46G(3) allows the CEO, by written notice, to require part-time examiners to provide details about their employment within a specified time. It also provides that part-time examiners must comply with this notice.
The effect of this amendment is that the CEO will be able require part-time examiners to provide information on their outside paid employment before engaging them in particular work and for the purpose of determining whether any conflict exists for the purpose of subsection 46G(2).
Items 14 - 17
Section 46H of the ACC Act provides for the termination of the appointment of an examiner by the Governor-General in prescribed circumstances. Subsection 46H(2) prescribes circumstances in which the Governor-General must terminate the appointment of an examiner, including bankruptcy, absence without leave, failure to comply with the ACC Act and engaging in outside employment without proper approval.
These items will preserve the effect of the current grounds for termination in relation to full-time examiners whilst adding new grounds in relation to part-time examiners.
Item 14
This item will insert '(being a full-time examiner)' after 'the examiner' in paragraph 46H(2)(b). This amendment will preserve the effect of the current provision for the termination of a full-time examiner's appointment on the ground of absence, other than on leave granted under section 46D, whilst excluding its application to part-time examiners.
Items 15
This item will insert '(being a full-time examiner)' after 'the examiner' in paragraph 46H(2)(d). This amendment will preserve the effect of the current provision for the termination of a full-time examiner's appointment on the ground of engaging in paid employment outside their office without the Minister's approval, whilst excluding its application to part-time examiners.
Item 16
This item will omit 'office.' and insert 'office (see subsection 46G(1)); or' in paragraph 46H(2)(d).
Paragraph 46H(2)(d) requires the Governor-General to terminate the appointment of an examiner who engages in paid employment outside their office. The effect of this amendment will be to include a reference to the subsection from which the prohibition against a full-time examiner engaging in outside paid employment originates.
Item 17
Subsection 46G(2) (to be inserted by item 13) will prohibit a part-time examiner from engaging in any paid employment, that in the CEO's opinion, conflicts or may conflict with the proper performance of the examiner's duties. Subsection 46G(3) (to be inserted by item 13) will require part-time examiners to give the CEO details of their employment upon receiving written notice to do so.
This item will insert subsection 46H(2)(e), which prescribes as grounds for termination the failure to comply with subsections 46G(2) and (3).
Item 18
This item will clarify that the amendments made by items 5 to 17 do not affect the validity of an appointment of an examiner made before the commencement of this item.