Senate

Explanatory Memorandum

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

Schedule 4 - Amendments relating to special payments to AFP appointees

GENERAL OUTLINE

This Schedule will amend the AFP Act to enable the Commissioner to authorise a payment in special circumstances that arise out of, or relate to, the person's engagement as an AFP appointee.

Under section 73 of the PS Act, the Public Service Minister may authorise payments in special circumstances that arise out of, or relate to, Commonwealth employment. It is generally accepted that section 73 payments should be considered only where the matter concerned has some connection with APS employment. This provision cannot be used to make special payments to AFP appointees, as they are employed under the AFP Act.

In the absence of a similar provision in the AFP Act, payment can be made to AFP appointees in special circumstances through an ex-gratia payment. Ex-gratia payments to AFP appointees require consultation with the Department of Finance and Deregulation, the Department of Prime Minister and Cabinet, the Minister for Home Affairs and Justice. The final decision on whether to approve an ex-gratia payment is made by the Prime Minister or Cabinet. This process can often take a considerable amount of time.

An alternative to an ex-gratia payment is seeking an act of grace payment from the Finance Minister under section 33 of the FMA Act. Act of grace payments are used where the obligations to the applicant are moral, rather than legal. These payments are only available where there is no other viable remedy available to provide redress in the circumstances.

Inserting a special circumstance payment provision into the AFP Act will:

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remove the need to seek ex-gratia payments for AFP appointees in cases that relate to their employment

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provide the Commissioner with the discretion to expediently grant payments to AFP appointees in special circumstances, and

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ensure that the AFP has the same capacity to make payments in special circumstances as other Commonwealth agencies that fall under the jurisdiction of the PS Act.

Australian Federal Police Act 1979

Item 1

This item will insert a note at the end of subsection 20(2A), which deals with the remuneration of Deputy Commissioners. The note will advise the reader of the Commissioner's power to authorise payments in special circumstances under new section 35A (inserted by item 4).

Item 2

This item will insert a note at the end of subsection 27(1), which deals with the remuneration of AFP employees. The note will advise the reader of the Commissioner's power to authorise payments in special circumstances under new section 35A (inserted by item 4).

Item 3

This item will insert a note at the end of subsection 35(2), which provides that the Commissioner may determine in writing that a consultant or independent contractor is an AFP appointee for the purposes of the Act. The note will advise the reader of the Commissioner's power to authorise payments in special circumstances under new section 35A (inserted by item 4).

Item 4

This item will insert Division 3A (Payments in special circumstances) after Division 3 of Part III of the AFP Act. New section 35A will set out the Commissioner's power to make payments in special circumstances and the limits and conditions that apply to the exercise of that power.

Subsection 35A(1)

This subsection will allow the Commissioner to authorise a payment to a person (the payee) where the Commissioner considers it is appropriate to do so because of special circumstances that relate to, or arise out of:

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the payee's engagement as an AFP appointee, or

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another person's engagement as an AFP appointee.

Under section 4 of the AFP Act, an AFP appointee means:

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a Deputy Commissioner

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an AFP employee engaged under section 24 of the AFP Act

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a special member

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a special protective service officer

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a person engaged to perform duties overseas as an employee of the AFP

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a secondee, or

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a consultant or independent contractor performing services for the AFP who is determined by the AFP Commissioner to be an appointee.

The Commissioner will be able to authorise a payment in relation to a person's engagement as an AFP appointee, whether this engagement commenced before or after the commencement of these amendments.

The potential recipient of a payment under this section could be an AFP appointee or another person whom the Commissioner considers it appropriate to make a payment to in the circumstances. For example, where an AFP appointee is injured in the course of work while deployed overseas, the Commissioner will be able to authorise a special circumstances payment to his or her spouse to pay the costs involved in travelling overseas.

Determining whether 'special circumstances' warrant making a payment under this new section will involve consideration on a case-by-case basis. The following broad guidelines (provided by the APSC in relation to payments made under section 73 of the PS Act) may be relevant to the Commissioner's considerations.

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A special circumstances payment might be made where the particular circumstances of a case lead to the publicly defensible conclusion that there is a moral obligation on the Commonwealth to make the payment.

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Special circumstances payments would not generally be appropriate in order to establish a scheme of payments to shore up program or legislative deficiencies. In these circumstances, the expected solution would be to remedy the program or legislative deficiencies.

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Care must be taken by decision-makers to consider the precedent effect of authorising a payment, for example whether the payment might be regarded as extending beyond what might reasonably be considered to be 'special circumstances'.

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The decision-maker should consider whether there is a more appropriate avenue for a potential claim. For example, in circumstances where detriment has been caused by the defective administration of a Commonwealth agency (other than cases relating to APS employee entitlements), payments under the scheme for 'Compensation for detriment caused by defective administration' may be more appropriate.

In accordance with section 44 of the FMA Act, the Commissioner must manage the affairs of the AFP, including the making of special circumstances payments, in a way that promotes efficient, effective and ethical use Commonwealth resources that is not inconsistent with the policies of the Commonwealth.

Subsection 35A(2)

This subsection will allow the Commissioner to authorise payments of specific amounts or periodical payments (or both). This is consistent with payments allowed under subsection 73(2) of the PS Act.

For example, where an AFP appointee was injured in the course of work, the Commissioner might authorise the payment of a lump sum to cover hospital expenses or periodic payments in the form of a wage subsidy, or both.

Subsection 35A(3)

This subsection provides that payments may be authorised under the section even though the payment would not otherwise be authorised by law or required to meet a legal liability. This will mean that an authorised payment does not evidence legal liability on the part of the Commonwealth.

For claims involving legal liability on the part of the Commonwealth, Appendix C of the Attorney-General's Legal Services Directions sets out the policy for settling claims against the Commonwealth. Monetary claims covered by the policy are to be settled in accordance with legal principle and practice, which requires the existence of at least a meaningful prospect of liability being established.

Subsection 35A(4)

Under subsection 35A(4), the Commissioner will only be able to make an authorisation under this section if it would involve, or be likely to involve, a total amount of up to $100,000.

Payments that might exceed $100,000 will have to be referred to the Minister for Finance and Deregulation for decision under the general arrangements for act of grace payments by the Commonwealth under section 33 of the FMA Act.

Subsection 35A(5)

Subsection 35A(5) will state that the conditions may be attached to payments under this section. If the condition is breached the payment will be able to be recovered by the Commonwealth in a court of competent jurisdiction.

For example, the Commissioner might authorise a payment to the spouse of an AFP member injured while serving overseas, with the condition that the payment be used to cover the costs involved in the spouse travelling to the AFP member.

The note to subsection 35A(5) clarifies that section 35A does not provide an authority for appropriating money for payments. Payments would normally be made out of the AFP's annual appropriation.

Item 5

This item will insert a note at the end of subsection 40E(1), which provides that the Commissioner may appoint a person as a special member of the AFP on such terms and conditions as the Commissioner determines in writing. The note will advise the reader of the Commissioner's power to authorise payments in special circumstances under new section 35A (inserted by item 4).

Item 6

This item will insert a note at the end of section 40EC, which provides that the Commissioner may appoint a person as a special protective service officer of the AFP on such terms and conditions as the Commissioner determines in writing. The note will advise the reader of the Commissioner's power to authorise payments in special circumstances under new section 35A (inserted by item 4).

Item 7

This item will insert a note at the end of subsection 69A(2), which deals the engagement of persons overseas to perform duties overseas as employees. The note will advise the reader of the Commissioner's power to authorise payments in special circumstances under new section 35A (inserted by item 4).

Items 8 - 10

Section 69C specifies the classes of AFP appointees to whom the Commissioner may delegate his or her powers and duties under the AFP Act.

These items will amend section 69C to provide that the Commissioner may delegate to a 'senior executive AFP employee' his or her power to authorise payments in special circumstances under section 35A, which will be inserted by item 4. This delegation must be in writing. This mirrors the delegation power in subsection 78(2) of the PS Act.

The Commissioner may declare an AFP employee to be a 'senior executive AFP employee' under section 25 of the AFP Act.

Item 11

This item will insert a note into section 69D of the AFP Act (Secondment of persons to assist the Australian Federal Police), to advise the reader of the Commissioner's power to authorise payments in special circumstances under section 35A.

Item 12

This item sets out the application of the new section 35A. The item clarifies that the Commissioner will have the power to authorise payments in relation to special circumstances which occurred prior to the commencement of the Schedule.