EXPLANATORY STATEMENT Select Legislative Instrument 2011 No. 246 Subject - Australian Civilian Corps Act 2011 Australian Civilian Corps Regulations 2011 The Australian Civilian Corps Act 2011 (the Act) established a legal framework for the engagement and management of a new category of Commonwealth employees, known as the Australian Civilian Corps (ACC), for rapid deployment to work in crisis environments overseas. Section 31 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. The Regulations prescribe a range of matters relevant to the management of ACC employees. In particular, section 12 of the Act provides that the regulations may prescribe the ACC Values, and subsection 15(1) provides that the regulations may prescribe the ACC Code of Conduct. These regulation-making powers are consistent with the Government's decision in 2009 that authorised the proposal of new legislation for the ACC, which envisaged that the ACC would have its own values and code of conduct. The ACC Values define the principles that govern the operation of the ACC as distinct from those applicable to agencies covered by the Public Service Act 1999. Accordingly, the ACC Values set out in Schedule 1 to the Regulations articulate the culture and operating ethos of the ACC and provide the context within which powers under the Act will be exercised. The other matters covered by the Regulations include the following: . limitation on the power to impose sanctions on breaches of the ACC Code of Conduct; . matters concerning external review of decisions relating to breaches of the ACC Code of Conduct, including limitations on the entitlement to seek review, process of review and powers of the reviewer; . duties and powers of the Director-General of the Australian Agency for International Development (AusAID Director General) as an employer in respect of an ACC employee; . power to suspend an ACC employee from duties, with or without remuneration; and . disclosure or use of personal information. As Australian Government employees, ACC employees are managed in a similar way to employees in the Australian Public Service (APS employees). To that end, the Regulations closely reflect relevant provisions in the Public Service Regulations 1999, which apply to APS employees. For instance, in relation to external review of decisions on breaches of the ACC Code of Conduct, the Regulations are significantly modelled on Division 5.3 of the Public Service Regulations in relation to review of Code of Conduct decisions for APS employees. However, there are some key differences between the ACC and the APS. In particular, the ACC only consists of employees engaged for specific deployments on short notice and for a short term, mostly three to 12 months, before they return to their regular employment. As such, ACC employment is not career-based, and there is no internal management structure within the ACC that is responsible for engagement and management of ACC employees. Rather, ACC employees are engaged and managed by people external to the ACC, namely the AusAID Director General and AusAID staff assisting the Director General. ACC employees are typically deployed to perform duties in high risk environments, working with people in cultures very different from those in Australia. In most cases, ACC employees and the Australian Government would have little or no control over the environments in which, and the people with whom, ACC employees would work. For these reasons, certain requirements and expectations pertinent to the APS are not appropriate for the ACC, and therefore have not been adopted, or have been modified, for the ACC. The Australian Public Service Commission has been consulted in the development of the Regulations. Relevant Australian Government agencies, the Community and Public Sector Union and a number of non-government organisations such as World Vision Australia have provided extensive comments on the ACC Values and ACC Code of Conduct. The Department of the Prime Minister and Cabinet has been consulted on regulation 20 regarding disclosure of personal information. Details of the Regulations are set out in the Attachment. The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003. Authority: Section 31 of the Australian Civilian Corps Act 2011 ATTACHMENT Details of the Australian Civilian Corps Regulations 2011 Regulation 1 - Name of Regulations This regulation provides that the title of the Regulations is the Australian Civilian Corps Regulations 2011. Regulation 2 - Commencement This regulation provides for the Regulations to commence on the day after the regulations are registered. Regulation 3 - Definitions This regulation defines certain terms used in the Regulations. Regulation 4 - Australian Civilian Corps Values Section 12 of the Act provides for regulations to be made to prescribe the ACC Values. The ACC Values articulate the culture and operating ethos of the ACC and provide the context within which powers under the Act will be exercised. Regulation 4 provides that the ACC Values are those set out in Schedule 1 to the Regulations. It should be noted that the AusAID Director General may, under section 13 of the Act, issue directions that determine the scope or application of the ACC Values. The ACC Values need to be read in light of any direction that might be issued by the AusAID Director General for this purpose. Further explanations of the ACC Values are provided in the notes on Schedule 1 below. Regulation 5 - Australian Civilian Corps Code of Conduct Section 15 of the Act provides for regulations to be made to prescribe the ACC Code of Conduct. The ACC Code of Conduct is intended to be a public statement of the standards of behaviour and conduct that are expected of ACC employees. Regulation 5 provides that the ACC Code of Conduct is the code set out in Schedule 2 to the Regulations. It should be noted that the AusAID Director General may, under section 16 of the Act, issue directions that determine the scope or application of the ACC Code of Conduct. The ACC Code of Conduct needs to be read in light of any direction that might be issued by the AusAID Director General for this purpose. Further explanations of the ACC Code of Conduct are provided in the notes on Schedule 2 below. Regulation 6 - Limitation on sanctions for breaches of Australian Civilian Corps Code of Conduct Under subsection 17(1) of the Act, the AusAID Director General may impose sanctions on any breaches of the ACC Code of Conduct, including deductions from salary by way of fine. Subsection 17(2) provides for regulations to be made to limit the AusAID Director General's power to impose sanctions. Accordingly, regulation 6 limits the amount that may be deducted from an employee's salary, by way of a fine, to no more than 2% of the ACC employee's annual salary. This regulation is modelled on regulation 2.3 of the Public Service Regulations. Regulation 7 - General policy about review Division 3, Part 2 of the Regulations, for the purposes of section 17A of the Act, set out the framework for external review of decisions made by AusAID on alleged breaches of the ACC Code of Conduct. Regulation 7 states the general Government policy on review of decisions under the Regulations, which is consistent with the general policy stated in regulation 5.1 of the Public Service Regulations concerning review of APS decisions. Regulation 8 - Director-General's responsibility This regulation sets out the overall responsibility of the AusAID Director General in relation to review of decisions under the Regulations. The AusAID Director-General's responsibility in this regard substantially mirrors that of Agency Heads of APS Agencies under regulation 5.5 of the Public Service Regulations. Regulation 9 - Exceptions to entitlement to review of decisions relating to breaches of Australian Civilian Corps Code of Conduct Under subsection 17A(1) of the Act, a person is entitled to review, in accordance with the regulations, of any of the following decisions: . a determination that the person breached the ACC Code of Conduct when the person was an ACC employee; . a decision to impose a sanction on the person for breaching the ACC Code of Conduct when the person was an ACC employee. Under subsection 17A(3), the regulations may prescribe exceptions to the right of review. Accordingly, regulation 9 sets out a number of exceptions broadly reflecting the exceptions under regulations 5.22 and 5.23 of the Public Service Regulations, which apply to review of decisions concerning APS employees. Under subregulation 9(2), a person who is an ACC employee with the substantive classification of ACC 3, or who was an ACC 3 employee immediately before his or her ACC employment ceased, would not be entitled to review. At the time the Regulations were made, an ACC 3 employee was equivalent to an SES employee in the APS. The exclusion of ACC 3 employees is consistent with the exclusion of SES employees from the review arrangement under regulation 5.22 of the Public Service Regulations. For the ACC, subregulation 9(3) clarifies that an ACC employee would lose his or her entitlement to review, and any review application on foot would lapse, once he or she is substantively promoted to ACC 3. It should be noted that, in relation to APS employees, regulation 5.22 of the Public Service Regulations does not exclude acting SES, because an acting SES employee remains a 'non-SES employee' (see the definition of 'acting SES employee' at section 7 of the Public Service Act) and is therefore entitled to review under regulation 5.22. Similarly, subregulations 9(2) and (3) of the Regulations do not exclude an acting ACC 3 employee from the review arrangement. Further, subregulations 9(2) and (3) do not affect the right of an ACC 3 employee to seek judicial review, under the Administrative Decisions (Judicial Review) Act 1977 or the Judiciary Act 1903, of any decision made under the Act or the Regulations concerning the employee. Certain employment-related decisions may also be reviewable under the Fair Work Act 2009. Under subregulation 9(4), a person is not entitled to review under the Regulations in respect of any decision that may be reviewed by a Court or tribunal, where an application has been made for review by that Court or tribunal. The exclusions under subregulations 9(2) to (4) operate automatically as long as the conditions described in those provisions are satisfied, and do not require any subjective judgment on the part of the AusAID Director General or a reviewer as to whether a particular decision should be reviewed. The AusAID Director General would have no obligation to find a reviewer for an application that has been made despite subregulation 9 (2) or (4), or where the applicant has ceased to be entitled to review under subregulation 9(3) because the applicant has become an ACC 3 employee after the applicant applied for review. This is because, under regulation 11, the AusAID Director General would be obliged to set up a review process only where the applicant's entitlement to review is not affected by subregulation 9(2), (3) or (4). In contrast, the exceptions under subregulation 9(5) would apply only after the AusAID Director General has identified a reviewer, and if the reviewer specifically decides that the decision should not be reviewed for one of the following reasons: . the application for review of the decision is made outside the time limit mentioned in subregulation 10(3), and the delay is not because of exceptional circumstances; . the application for review is frivolous or vexatious; . the applicant has previously applied to the AusAID Director General for review of the decision; . the applicant has applied, or could apply, to have the decision reviewed by a more suitable body, e.g. the Ombudsman; or . review of the decision is not otherwise justified in all the circumstances, e.g. where the applicant does not comply with a requirement to provide further information about why the review is sought. The above grounds of exclusion reflect the relevant exceptions provided by regulation 5.23(3) of the Public Service Regulations in relation to review of decisions concerning APS employees. Regulation 10 - Application for review Regulation 10 sets out the requirements that need to be met by any application for review under the Regulations. Specifically, an application must: . be made in writing to the AusAID Director General; . state briefly why the review is sought and any specific outcome that the applicant is seeking; and . be made within 60 days after the making of the decision in respect of which review is sought. Regulation 11 - Setting up review process If the AusAID Director General receives a review application that complies with regulation 10, and the applicant's entitlement to review is not affected by subregulation 9(2), (3) or (4), the AusAID Director General would be required to identify or constitute a reviewer and provide relevant documentation to both the reviewer and the applicant in accordance with regulation 11. It is anticipated that the AusAID Director General will seek to establish an arrangement with the Merit Protection Commissioner for the Commissioner to review decisions on a fee-for-service basis under regulation 7.4 of the Public Service Regulations, as requested by the AusAID Director General from time to time. Such an arrangement, if established with the Merit Protection Commissioner, would be similar to existing arrangements for the Commissioner's review of misconduct decisions concerning other kinds of Government employees who are not APS employees. Neither the Act nor the Regulations impose any legal obligation on the Merit Protection Commissioner or any other person to conduct a review when requested by the AusAID Director General. However, the Act does impose an obligation on the Director General to ensure that a review is in fact conducted in accordance with section 17A of the Act. If, for some reason, a person requested to review a decision were to decline to do so, the Director General would need to find another person, who meets the criteria set out in subsections 17A(5) to (8) in relation to independence and qualifications, to conduct the review. Regulation 12 - Notification of no entitlement to review If a reviewer decides under subregulation 9(5) that an applicant is not entitled to review, the reviewer would be required to notify the applicant in accordance with subregulation 12(1). If the applicant is not entitled or ceases to be entitled to review of a decision according to subregulation 9(2) or (3) on the basis that the applicant is, was or has become an ACC 3 employee, the AusAID Director General would be required by subregulation 12(2) to ensure that the applicant is notified. If the applicant becomes an ACC 3 employee after a reviewer has been identified to review the decision, the AusAID Director General would be required by subregulation 12(4) to ensure the reviewer is notified as well. Similarly, if an applicant is not entitled to review according to subregulation 9(4) because the applicant has applied for review by a Court or tribunal which may review the decision, and if the Court or tribunal notifies the AusAID Director General of such an application, subregulation 12(2) would require the AusAID Director General to ensure the applicant is notified of the disentitlement. If an application to a Court or tribunal is made after a reviewer has been identified by the AusAID Director General, subregulation 12(4) would require the reviewer to be notified as well. The notification requirement under subregulation 12(4) would also apply where the applicant had applied for review by a Court or tribunal before he or she applied to the AusAID Director General for review under the Regulations, but the AusAID Director General was not notified of that application until after a reviewer had been identified. In that case, the AusAID Director General would need to ensure the reviewer is informed that the applicant is in fact not entitled to review under the Regulations. Regulation 13 - Conduct of review Where an applicant's entitlement is not excluded under regulation 9, the reviewer must deal with the application in accordance with regulation 13. In particular, the reviewer must review the decision and make a recommendation to the AusAID Director General. Regulation 14 - Action by Director-General following review Regulation 14 requires the AusAID Director General to deal with the reviewer's recommendation in accordance with that regulation. Specifically, the AusAID Director General must consider whether the original decision should be confirmed, varied or set aside in light of the recommendation. In addition, the AusAID Director General has an obligation to tell the applicant and the reviewer what the Director General has decided to do with the original decision and the reason for having done so. Regulation 15 - Review procedures Subregulation 15(1) requires the AusAID Director General and the reviewer to agree on the review procedures. This differs from regulation 5.34 of the Public Service Regulations, which requires the Merit Protection Commissioner to issue instructions that must be followed in the review of any decision falling within the Commissioner's jurisdiction. This departure from the Public Service Regulations is necessary because the Act requires the AusAID Director General to identify a reviewer on a case by case basis. The Act does not provide for a single entity such as the Merit Protection Commissioner to be solely responsible for reviewing decisions for current or former ACC employees. In these circumstances, it would not be appropriate for the Merit Protection Commissioner to determine the procedures for all reviews under the Regulations. However, in the event that the AusAID Director General establishes an arrangement with the Merit Protection Commissioner for the Commissioner to review ACC Code of Conduct decisions, it is expected that standard procedures would be agreed between the AusAID Director General and the Commissioner, which would be followed by the Commissioner each time the Commissioner agrees to conduct a review as requested by the AusAID Director General. The standard procedures are expected to be similar to the procedures followed by the Commissioner in relation to review of APS decisions. In all other respects, regulation 15 is identical in substance to regulations 5.33 and 5.34 of the Public Service Regulations, which prescribe the basic procedural requirements for reviews. As with the review of APS decisions, the review process under the Regulations is not intended to replicate a court process. Accordingly, under subregulation 15(4), an applicant appearing before a reviewer is not entitled to be represented. This mirrors subregulation 5.33(2) of the Public Service Regulations, which is in turn consistent with subregulation 5.33(1), which requires reviews to be finished as quickly and with as little formality as a proper consideration of the matter allows. Therefore, APS applicants are not allowed representation unless the Merit Protection Commissioner considers representation to be reasonable in the particular circumstances. The APS experience indicates that better outcomes to reviews can be achieved when the reviewer deals directly with the review applicant. This is because reviews often involve people's interpretation of events or procedures, and dealing directly with the applicant allows the reviewer to understand the issue based on the applicant's own words and thoughts. This approach also promotes the applicant's ownership of the issues and the review outcome. The above considerations are relevant to the review of ACC Code of Conduct decisions as well. The requirement for informality is reflected in subregulation 15(2) of the Regulations, and the general rule against representation under subregulation 15(4) is one aspect of the informality required by subregulation 15(2). Regulation 16 - Requirements to provide information or documents Regulation 16 enables the reviewer to require the AusAID Director General, an APS Agency Head, or a person who is or was an ACC employee to give the reviewer specified information or documents relevant to the review. An APS Agency Head may delegate the function of providing information, or expressly or impliedly authorise another person to provide information on the Agency Head's behalf, to comply with a requirement under regulation 16: see the definition of 'Agency Head' under regulation 3. Regulation 17 - Making of application does not operate as stay Regulation 17 clarifies that an application for review of a decision does not have the effect of suspending the operation of the decision. In other words, the decision would continue to have effect while the review process is under way. Regulation 18 - Power to require Australian Civilian Corps Employee to attend medical examination or mental health assessment Under section 19 of the Act, the AusAID Director General may engage ACC employees subject to conditions dealing with health clearances (see paragraph 19(4)(e)). Where such a condition has been imposed in respect of an ACC employee, medical examinations and/or mental health assessments of the employee would need to be conducted to ascertain whether the employee meets the condition. To that end, paragraph 18(1)(a) of the Regulations, together with subregulation 18(2), would enable the AusAID Director General to require an ACC employee to undergo a medical examination or mental health assessment to assess the employee's fitness for duty. The effect of these provisions is substantially the same as that of regulation 3.1 of the Public Service Regulations, which applies to APS employees. In addition, a medical examination or mental health assessment may also be required in the specific circumstances listed in paragraph 18(1)(b), which are the same as the circumstances listed in regulation 3.2 of the Public Service Regulations in relation to APS employees. More particularly, provided that the AusAID Director General believes that an ACC employee's health has or may have any of the adverse effects specified in paragraph 18(1)(b), the AusAID Director General may require an ACC employee to undergo medical examination or mental health assessment to assess the employee's fitness for duty, irrespective of whether the employee's engagement is subject to health clearance in accordance with subsection 19(4) of the Act. Medical examinations and mental health assessments for the purposes of regulation 18 would only be conducted by persons nominated by the AusAID Director General. However, regulation 18 is not intended to require the AusAID Director General to make a nomination each time an ACC employee needs to be examined or assessed. Instead, the AusAID Director General may pre-nominate a number of medical practitioners or clinical psychologists for any examination or assessment that might need to be conducted in respect of ACC employees. Since ACC employees perform their duties predominantly outside Australia, regulation 18 permits medical examinations and mental health assessments to be conducted by foreign medical practitioners and foreign clinical psychologists, provided that they are permitted to practice medicine or psychology, as the case may be, under the law of the country in which the examination or assessment is to be conducted. In this respect, it should be noted that an ACC employee may be required to undergo an examination or assessment in a third country, i.e. a country other than the country in which the employee is deployed to perform ACC duties. In that case, the ACC employee may be examined or assessed by a medical practitioner or psychologist who is legally permitted to conduct such an examination or assessment in the third country. Regulation 19 - Suspension Regulation 19 permits the AusAID Director General to suspend an ACC employee from duties, subject to substantially the same conditions and restrictions as those applicable to an Agency Head in relation to suspension of APS employees under regulation 3.10 of the Public Service Regulations. In particular, regulation 19 permits an ACC employee to be suspended where this is in the public interest or in the interests of the ACC. In addition, since the ACC initiative is an AusAID-administered program, an ACC employee may also be suspended where this is in the interests of AusAID. Regulation 20 - Disclosure or use of personal information The Privacy Act 1988 restricts the ability of Commonwealth officials to use or disclose personal information, i.e. information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. Information Privacy Principles 10 and 11, set out in section 14 of the Privacy Act, permit personal information to be used or disclosed only in the circumstances specified in those principles. Amongst other circumstances, those principles permit personal information to be used or disclosed where this is required or authorised by or under law. Regulation 20 of the Regulations authorises use or disclosure of personal information in the circumstances specified in that regulation. Any use or disclosure of information as authorised would be a permitted use or disclosure under Information Privacy Principle 10 or 11. The purposes for which personal information may be used or disclosed under regulation 20 are comparable to the purposes for which personal information may be disclosed by an Agency Head under paragraphs 9.2(1)(a), (b) and (e) of the Public Service Regulations. In particular, paragraph 9.2(1)(a) permits personal information to be shared between APS Agency Heads for purposes connected with APS employment. Paragraph 20(1)(a) of the Regulations is intended to facilitate the sharing of personal information between the AusAID Director General and APS Agency Heads in a similar way, for purposes connected with ACC employment. To share or use information as permitted by regulation 20, an APS Agency Head may delegate the relevant functions, or expressly or impliedly authorise another person to perform those functions on the Agency Head's behalf: see the definition of 'Agency Head' under regulation 3. Paragraph 20(1)(c) permits use or disclosure that is necessary for the performance of an 'outsourced personnel function', which essentially includes any personnel function to be performed by a contractor under a Commonwealth contract in respect of former, current or prospective ACC employees. 'Commonwealth contract' for this purpose has the same meaning as in the Privacy Act 1988, and therefore means 'a contract, to which the Commonwealth or an agency is or was a party, under which services are to be, or were to be, provided to an agency'. In effect, paragraph 20(1)(c) would, for example, permit personal information to be disclosed to a contractor engaged by AusAID where this is necessary for the contractor to perform a personnel function in respect of former, current or prospective ACC employees. Under subregulation 20(2), the contractor may further disclose the information without the AusAID Director General's written permission. However, consistently with the restriction under Information Privacy Principle 11.3, further use or disclosure is permitted under subregulation 20(2) only for the performance of the outsourced personnel function for the purposes of which the information was disclosed to the contractor in the first place. Schedule 1 - Australian Civilian Corps Values Schedule 1 prescribes the ACC Values. The ACC Values incorporate most of the APS Values set out in section 10 of the Public Service Act, as in force at the time when the Regulations were made. However, some of the values have been modified to make them more relevant to the ACC. A number of ACC- specific values have also been included to indicate the unique objectives of the ACC. The following table compares the ACC Values with the APS Values. |ACC Value |Equivalent |Comments | | |APS Value | | |Paragraphs 1, 2, 3, |Paras (a), (d), (e), |References to | |11 and 12. Same as |(f) and (h) |'Australian Civilian | |APS Values, except | |Corp employees' are | |that references to | |used to emphasise | |'the APS' are | |that these values | |replaced with | |apply to each ACC | |references to | |employee. | |'Australian Civilian | | | |Corps employees'. | | | |4. Inclusion on the |(m) the APS provides |Engagement of ACC | |ACC Register is |a reasonable |employees involves a | |merit-based, with all|opportunity to all |2-step process: (1) | |eligible members of |eligible members of |inclusion of eligible| |the community having |the community to |individuals on the | |a reasonable |apply for APS |ACC Register, which | |opportunity to apply |employment |does not involve | |to join the Register.| |employment of any | | | |individual; and (2) | | | |employment of | | | |individuals, from the| | | |ACC Register, for | | | |each deployment. Due| | | |to the rapid nature | | | |of ACC deployments, | | | |deployees often need | | | |to be identified | | | |within a very short | | | |timeframe, and so | | | |open recruitment is | | | |not appropriate. | | | |Members of the ACC | | | |Register are expected| | | |to have undergone | | | |appropriate training,| | | |screening and | | | |assessment so that | | | |they may be rapidly | | | |deployed should the | | | |need arise. Members | | | |of the public would | | | |have a reasonable | | | |opportunity to apply | | | |for inclusion on the | | | |ACC Register (ie. | | | |step (1) of the | | | |engagement process), | | | |consistent with this | | | |ACC Value. | |5. Australian |(b) the APS is a |As explained above, | |Civilian Corps |public service in |engagement of ACC | |employees are |which employment |employees involves a | |Australian Government|decisions are based |2-step process: (1) | |officials recruited |on merit |inclusion of eligible| |from the ACC Register| |individuals on the | |on the basis of | |ACC Register, which | |merit. | |does not involve | | | |employment of any | | | |individual; and (2) | | | |employment of | | | |individuals, from the| | | |ACC Register, for | | | |each deployment. The| | | |decision to 'employ' | | | |a person at step (2) | | | |must be merit-based | | | |according to this ACC| | | |Value. The concept | | | |of 'merit' for the | | | |purposes of this ACC | | | |Value would be | | | |explained in the | | | |AusAID Director | | | |General's directions.| | | | | | | |ACC employees are | | | |unlikely to be | | | |involved in providing| | | |services directly to | | | |members of the | | | |public, and so it is | | | |not entirely accurate| | | |to describe the ACC | | | |as 'a public | | | |service'. | | | |'Australian | | | |Government officials'| | | |is a more appropriate| | | |description of the | | | |status of ACC | | | |employees. | |6. The |(c) the APS provides |This ACC Value refers| |Director-General of |a workplace that is |to the AusAID | |AusAID provides, to |free from |Director General | |the extent possible, |discrimination and |rather than ACC | |a workplace that is |recognises and |employees because ACC| |free from |utilises the |employees themselves | |discrimination and |diversity of the |are not responsible | |recognises and |Australian community |for ACC recruitment | |utilises the |it serves |decisions and will | |diversity of the | |have little or no | |Australian community.| |control over their | | | |own workplaces in | | | |host countries. The | | | |AusAID Director | | | |General, in engaging | | | |and managing ACC | | | |employees, will | | | |comply with relevant | | | |anti-discrimination | | | |legislation. | | | |However, there are | | | |limits to what the | | | |Australian Government| | | |may do in relation to| | | |workplaces overseas. | | | |The specific needs of| | | |host countries as to | | | |the characteristics | | | |of the personnel | | | |required in each case| | | |would also need to be| | | |taken into account. | | | |The phrase 'to the | | | |extent possible' in | | | |paragraph 6 | | | |highlights that, | | | |while complying with | | | |applicable | | | |legislation, it may | | | |not always be | | | |possible for | | | |employment practices | | | |in relation to the | | | |ACC to meet the | | | |standards normally | | | |expected in other | | | |contexts in relation | | | |to | | | |anti-discrimination | | | |and workplace | | | |diversity. | |7. The |(i) the APS |This ACC Value refers| |Director-General of |establishes workplace|to the AusAID | |AusAID establishes |relations that value |Director General | |workplace relations |communication, |rather than ACC | |with Australian |consultation, co |employees because the| |Civilian Corps |operation and input |promotion of this | |employees that value |from employees on |value is more a | |communication, |matters that affect |matter for the AusAID| |consultation, |their workplace |Director General, as | |cooperation and input| |the employer and | |from employees on | |manager of ACC | |matters that affect | |employees. There is | |their workplace. | |no internal | | | |management structure | | | |within the ACC, and | | | |as such, there is | | | |limited scope for ACC| | | |employees to | | | |'establish' workplace| | | |relations amongst | | | |themselves. | |8. The |(j) the APS provides |This ACC Value refers| |Director-General of |a fair, flexible, |to the AusAID | |AusAID provides, to |safe and rewarding |Director General | |the extent possible, |workplace |rather than ACC | |a fair, flexible, | |employees. Given the| |safe and rewarding | |role of ACC employees| |workplace for | |in host countries and| |Australian Civilian | |their short-term | |Corps employees. | |presence, they are | | | |highly unlikely to be| | | |in a position to have| | | |any meaningful | | | |influence over the | | | |fairness, safety, | | | |etc. of their own | | | |workplace overseas. | | | |The AusAID Director | | | |General will comply | | | |with all applicable | | | |workplace health and | | | |safety legislation in| | | |relation to ACC | | | |employees. However, | | | |there are limits to | | | |what the Australian | | | |Government may do in | | | |relation to the | | | |workplaces of | | | |deployees in host | | | |countries. The | | | |specific needs of | | | |host countries in | | | |relation to each | | | |deployment would also| | | |need to be taken into| | | |account. The phrase | | | |'to the extent | | | |possible' in | | | |paragraph 8 | | | |highlights that, | | | |while complying with | | | |applicable | | | |legislation, it may | | | |not always be | | | |possible for the | | | |workplaces of ACC | | | |employees to meet the| | | |standards normally | | | |expected of a regular| | | |workplace in | | | |Australia in relation| | | |to workplace safety, | | | |flexibility etc. | |9. The |(k) the APS focuses |Same in substance as | |Director-General of |on achieving results |APS Value. | |AusAID and Australian|and managing | | |Civilian Corps |performance | | |employees focus on | | | |achieving results and| | | |managing performance.| | | |10. The |(o) the APS provides |Same in substance as | |Director-General of |a fair system of |APS Value. | |AusAID provides a |review of decisions | | |fair system of review|taken in respect of | | |of decisions relating|APS employees | | |to Australian | | | |Civilian Corps | | | |employees. | | | |13. Australian |N/A |No equivalent APS | |Civilian Corps | |Value. Included to | |employees respond | |state the ACC's | |flexibly to assist | |mandate and its | |host countries | |unique objectives. | |experiencing or | | | |emerging from natural| | | |disasters or | | | |conflicts. | | | |14. Australian |(g) the APS delivers |The ACC does not | |Civilian Corps |services fairly, |deliver any service | |employees consider |effectively, |to the Australian | |the needs of the most|impartially and |public. Rather, the | |vulnerable people, |courteously to the |ACC provides advice | |and carry out their |Australian public and|to host governments | |functions fairly, |is sensitive to the |and other | |effectively and with |diversity of the |organisations in | |cultural sensitivity |Australian public |foreign countries for| |for the benefit of | |the benefit of the | |people who are | |people in those | |affected by conflict | |countries. The focus| |or disaster in the | |on the needs of the | |host country. | |most vulnerable is | | | |consistent with | | | |relevant humanitarian| | | |principles. | |15. Australian |N/A |No equivalent APS | |Civilian Corps | |Value. Included to | |employees respect | |reflect relevant | |local ownership of | |humanitarian | |the recovery process,| |principles. | |including ownership | | | |by the host | | | |government as | | | |appropriate, and | | | |encourage broad | | | |community | | | |participation in that| | | |process. | | | |16. Australian |N/A |No equivalent APS | |Civilian Corps | |Value. Included to | |employees work with | |reflect the nature of| |Australian and | |ACC deployments. | |international | | | |partners to deliver | | | |coherent and | | | |harmonised assistance| | | |to host countries. | | | |17. Australian |N/A |No equivalent APS | |Civilian Corps | |Value. Included to | |employees strive to | |reflect the | |minimise harm that | |humanitarian | |may be inadvertently | |principle of 'do no | |caused in providing | |harm / do less harm'.| |assistance. | | | |N/A |(l) the APS promotes |The process for | | |equity in employment |including individuals| | | |on the ACC Register | | | |will be equitable. | | | |However, employment | | | |decisions (i.e. | | | |selection for a | | | |particular | | | |deployment) may need | | | |to take into account | | | |factors such as | | | |cultural and gender | | | |attitudes in the host| | | |country (that would | | | |impact upon ability | | | |to perform the job | | | |effectively), or lack| | | |of facilities or | | | |support in crisis | | | |environments for any | | | |employee with | | | |disabilities. | |N/A |(n) the APS is a |ACC employment is | | |career-based service |predominantly | | |to enhance the |short-term and thus | | |effectiveness and |not career-based. | | |cohesion of | | | |Australia's | | | |democratic system of | | | |government | | Schedule 2 - Australian Civilian Corps Code of Conduct Schedule 2 prescribes the ACC Code of Conduct. The ACC Code of Conduct is based heavily on the APS Code of Conduct set out in section 13 of the Public Service Act as in force at the time when the Regulations were made, with some of the provisions broadened to ensure adequate coverage of ACC employees. In addition, the ACC Code of Conduct includes relevant elements of the AusAID Code of Conduct for Overseas Service (AusAID Overseas Code), which applies to APS employees engaged in AusAID who are on duty overseas. The following table compares the ACC Code of Conduct with the APS Code of Conduct. |ACC Code of Conduct |Equivalent APS Code |Comments | | |of Conduct | | |1. An Australian |(11) An APS employee |Same as the APS Code | |Civilian Corps |must at all times |of Conduct (APS | |employee must act at |behave in a way that |Code). | |all times in a way |upholds the APS | | |that upholds the |Values and the | | |Australian Civilian |integrity and good | | |Corps Values and the |reputation of the | | |integrity and good |APS. | | |reputation of the | | | |Australian Civilian | | | |Corps. | | | |2. An Australian |(12) An APS employee |Amended 'on duty | |Civilian Corps |on duty overseas must|overseas' to 'while | |employee must, while |at all times behave |deployed overseas' to| |deployed overseas, |in a way that upholds|clarify the intention| |behave in a way that |the good reputation |that this obligation | |upholds the good |of Australia. |applies to a deployee| |reputation of | |overseas even when | |Australia at all | |the deployee is not | |times. | |performing official | | | |duties, including | | | |when the deployee is | | | |on leave in a country| | | |other than the host | | | |country during the | | | |term of his or her | | | |deployment. ACC | | | |employees deployed | | | |overseas are seen as | | | |representatives of | | | |Australia, not only | | | |in the performance of| | | |their official | | | |functions but also in| | | |the manner in which | | | |they conduct | | | |themselves as private| | | |individuals. The | | | |scope of this duty is| | | |consistent with that | | | |of the duty under the| | | |Codes of Conduct that| | | |apply to AusAID | | | |employees posted | | | |overseas at present. | |3. An Australian |(1) An APS employee |Paragraphs 3, 4 and 5| |Civilian Corps |must behave honestly |of the ACC Code are | |employee must behave |and with integrity in|closely modelled on | |honestly, ethically |the course of APS |provisions of the APS| |and with integrity in|employment. |Code, but use the | |connection with | |phrase 'in connection| |Australian Civilian | |with Australian | |Corps employment. | |Civilian Corps | | | |employment', which is| | | |broader than 'in the | | | |course of APS | | | |employment'. This is| | | |because ACC employees| | | |overseas are more | | | |'visible' than APS | | | |employees in | | | |Australia and | | | |therefore a higher | | | |standard of behaviour| | | |is expected. | |4. An Australian |(2) An APS employee |See comments above in| |Civilian Corps |must act with care |relation paragraph 3.| |employee must act |and diligence in the | | |with care and |course of APS | | |diligence in |employment. | | |connection with | | | |Australian Civilian | | | |Corps employment. | | | |5. An Australian |(3) An APS employee, |Substantially the | |Civilian Corps |when acting in the |same as APS Code. | |employee must, when |course of APS |See also comments | |acting in connection |employment, must |above in relation to | |with Australian |treat everyone with |paragraph 3. | |Civilian Corps |respect and courtesy,| | |employment, treat |and without | | |everyone with |harassment. | | |respect, courtesy and| | | |dignity, and without | | | |harassment. | | | |6. An Australian |N/A |No equivalent | |Civilian Corps | |provision in APS Code| |employee must, at all| |of Conduct. Included| |times, be culturally | |to reflect the nature| |sensitive in the host| |of ACC deployments, | |country, or any other| |and is consistent | |country in which he | |with the AusAID | |or she is travelling.| |Overseas Code. | |7. An Australian |(4) An APS employee, |To reflect the nature| |Civilian Corps |when acting in the |of ACC deployments, | |employee must, at all|course of APS |this provision refers| |times while deployed |employment, must |to applicable laws of| |overseas, comply with|comply with all |the host country and | |all applicable laws |applicable Australian|other relevant | |of Australia, the |laws ... |countries, as well as| |host country and any | |Australian laws. | |other country in | |ACC employees spend | |which he or she is | |most of their time | |travelling. | |overseas. While | | | |deployed overseas, | | | |they are expected to | | | |comply with | | | |applicable laws 'at | | | |all times' rather | | | |than just in the | | | |course of employment.| | | |This is consistent | | | |with the language | | | |used in paragraph 2 | | | |of the ACC Code. In | | | |particular, the | | | |requirement to comply| | | |with applicable laws | | | |under paragraph 7 is | | | |intended to apply to | | | |an ACC employee even | | | |when he or she is not| | | |performing official | | | |duties, and when he | | | |or she is on leave in| | | |a country other than | | | |the host country | | | |during the term of | | | |his or her | | | |deployment. | | | |The AusAID Director | | | |General would issue | | | |directions to give | | | |instructions on how | | | |to deal with | | | |situations where an | | | |ACC employee is | | | |subject to | | | |conflicting laws. | |8. An Australian |(5) An APS employee |The wording of this | |Civilian Corps |must comply with any |provision differs | |employee must comply |lawful and reasonable|from the equivalent | |with any lawful and |direction given by |provision in the APS | |reasonable direction |someone in the |Code because the Head| |given by: |employee's Agency who|of Mission has | |a senior AusAID |has authority to give|overall | |Officer who has |the direction. |responsibility for | |authority to give the| |Commonwealth | |direction; and | |employees in a host | |while overseas - the | |country. | |Australian Head of | |The AusAID Director | |Mission or, when | |General's directions | |there is no | |would clarify the | |Australian Head of | |meaning of 'senior | |Mission in the host | |AusAID officer who | |country, the senior | |has authority to give| |representative of the| |the direction' and | |Australian Government| |'senior | |to the host country. | |representative of the| | | |Australian Government| | | |to the host country'.| | | | | | | |The Director | | | |General's directions | | | |would also deal with | | | |situations where an | | | |employee is subject | | | |to multiple (and | | | |potentially | | | |conflicting) lines of| | | |command and control. | |9. An Australian |N/A |No equivalent | |Civilian Corps | |provision in APS | |employee must not | |Code. Included in | |engage in sexual | |light of the unique | |exploitation or abuse| |environments in which| |of any person in the | |the ACC will operate.| |host country, whether| | | |that person is a | | | |child or adult. | | | |10. An Australian |N/A |No equivalent | |Civilian Corps | |provision in APS | |employee must not | |Code. Included to | |engage in behaviour | |reflect the nature of| |that compromises the | |ACC deployments. | |safety, security or | | | |health of themselves | | | |or others. | | | |11. An Australian |(7) An APS employee |Same as APS Code. | |Civilian Corps |must disclose, and | | |employee must |take reasonable steps| | |disclose, and take |to avoid, any | | |reasonable steps to |conflict of interest | | |avoid, any conflict |(real or apparent) in| | |of interest (real or |connection with APS | | |apparent) in |employment. | | |connection with | | | |Australian Civilian | | | |Corps employment. | | | |12. An Australian |(10) An APS employee |Same as APS Code. | |Civilian Corps |must not make | | |employee must not |improper use of: | | |make improper use of:|(a) inside | | | |information; or | | |inside information; |(b) the employee's | | |or |duties, status, power| | |the employee's |or authority; | | |duties, status, power|in order to gain, or | | |or authority; |seek to gain, a | | |in order to gain, or |benefit or advantage | | |seek to gain, a |for the employee or | | |benefit or advantage |for any other person.| | |for the employee or | | | |for any other person.| | | |13. An Australian |N/A |No equivalent | |Civilian Corps | |provision in APS | |employee must not | |Code. Included to | |accept gifts, | |reflect the nature of| |benefits, hospitality| |ACC deployments, and | |or advantages that | |is consistent with | |are offered in | |the AusAID Overseas | |connection with his | |Code. The AusAID | |or her duties, | |Director General's | |status, power or | |directions relating | |authority, except in | |to acceptance of | |accordance with | |gifts would form part| |directions issued by | |of the directions to | |the Director-General | |be given under | |of AusAID under the | |section 16 of the | |Act from time to | |Act, which would be a| |time. | |disallowable | | | |legislative | | | |instrument (similar | | | |to regulations) and | | | |would be publicly | | | |available. | |14. An Australian |(8) An APS employee |Based on APS Code, | |Civilian Corps |must use Commonwealth|but amended to refer | |employee must use any|resources in a proper|to 'any government | |government resources |manner. |resources' to cover | |in a proper manner. | |both Australian | | | |Government resources | | | |and resources of any | | | |other governments, | | | |such as the host | | | |government, that may | | | |be available for use | | | |by an ACC employee. | |15. An Australian |(9) An APS employee |Same as APS Code. | |Civilian Corps |must not provide | | |employee must not |false or misleading | | |provide false or |information in | | |misleading |response to a request| | |information in |for information that | | |response to a request|is made for official | | |for information that |purposes in | | |is made for official |connection with the | | |purposes in |employee's APS | | |connection with the |employment. | | |employee's Australian| | | |Civilian Corps | | | |employment. | | | |16. An Australian |(6) An APS employee |The confidentiality | |Civilian Corps |must maintain |obligation under the | |employee must not |appropriate |ACC Code is broader | |disclose confidential|confidentiality about|than that under the | |information to any |dealings that the |APS Code, and covers | |person, including the|employee has with any|confidential | |media, which the |Minister or |information including| |employee obtains or |Minister's member of |but not limited to | |generates in |staff. |dealings with | |connection with | |Ministers and their | |Australian Civilian | |staff. | |Corps employment | |Failure to comply | |unless: | |with this provision | |the disclosure is | |would not only be in | |necessary to enable | |breach of the ACC | |the employee to | |Code, but may also | |perform his or her | |constitute an offence| |duties; or | |against the Crimes | |the information is | |Act 1914 for | |disclosed in | |unauthorised | |accordance with an | |disclosure of | |authorisation given | |official information | |by the AusAID | |or official secret. | |Director-General or a| | | |relevant delegate; or| | | | | | | |the disclosure is | | | |otherwise required or| | | |authorised by law. | | | |17. An Australian |N/A |No equivalent | |Civilian Corps | |provision in APS | |employee must take | |Code. Included to | |reasonable steps to | |reflect the nature of| |ensure that members | |ACC deployments, | |of his or her | |drawing on relevant | |household: | |elements of the | |comply with | |AusAID Overseas Code.| |applicable local | | | |laws; and | | | |are culturally | | | |sensitive, at all | | | |times, to people in | | | |the host country; and| | | | | | | |do not adversely | | | |affect the good | | | |reputation of | | | |Australia; and | | | |do not engage in | | | |behaviour that | | | |compromises the | | | |safety of themselves | | | |or others. | | | |18. An Australian |N/A |No equivalent | |Civilian Corps | |provision in APS Code| |employee overseas | |of Conduct. Included| |must inform the | |to reflect the nature| |senior representative| |of ACC deployment, | |of the Australian | |drawing on relevant | |Government to the | |elements of the | |host country as soon | |AusAID Overseas Code.| |as practicable if: | | | |the employee, or a | | | |member of his or her | | | |household, comes to | | | |the notice of the | | | |local law enforcement| | | |authorities; or | | | |the employee becomes | | | |aware of serious | | | |criminal misconduct | | | |by an Australian | | | |citizen in the host | | | |country, unless it is| | | |reasonable for the | | | |employee to believe | | | |that it has already | | | |come to the attention| | | |of the senior | | | |representative. | | | |N/A |(13) An APS employee |Not applicable to the| | |must comply with any |ACC. The Act | | |other conduct |provides for the ACC | | |requirement that is |Code of Conduct to be| | |prescribed by the |set out in the | | |regulations. |regulations. The Act| | | |does not provide for | | | |further conduct | | | |requirements to be | | | |prescribed in | | | |addition to the Code | | | |of Conduct. |