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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN
PROTECTIVE SERVICE AMENDMENT BILL 2002
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister for Justice
and
Customs, Senator the Honourable Chris Ellison)
Following the September 11 terrorist attacks in the United States, the
Government initiated a high level review of Australia’s security and
counter-terrorism arrangements and relationships between Australia’s key
counter terrorist agencies. To promote the closest coordination between the
Australian Federal Police and the Australian Protective Service and ensure that
Australia can best meet the demands of the new terrorist environment, the
Government proposed that the Australian Protective Service become an operating
division of the Australian Federal Police.
This Bill will amend the
Australian Protective Service Act 1987 to transfer responsibility for the
Australian Protective Service from the Secretary of the Attorney-General’s
Department to the Commissioner of the Australian Federal Police. The
Commissioner of the Australian Federal Police would be responsible for
administering the Australian Federal Police Act 1979 and the
Australian Protective Service Act 1987.
The amendments would bring
the Australian Protective Service under the command and administrative umbrella
of the Commissioner of the Australian Federal Police.
To effect this
transfer, the amendments would establish the Australian Protective Service as a
Statutory Agency, with the Commissioner of the Australian Federal Police as
Agency Head.
The Australian Protective Service would continue to be
governed by the Australian Protective Service Act 1987, and the powers
and duties of the Australian Protective Service would remain
unchanged.
There are no direct financial impacts from this Bill.
NOTES ON CLAUSES
This clause sets out the short title of this Act namely the Australian
Protective Service Amendment Bill 2002.
This clause provides that the Act will commence on Royal Assent.
This clause provides that each Act that is specified in a Schedule is amended
or repealed as set out in that Schedule.
These are standard words which
give formal effect to the substantive amendments in Schedule 1.
This Schedule amends the Australian Protective Service Act 1987 to
transfer responsibility from the Secretary of the Attorney-General’s
Department to the Commissioner of the Australian Federal Police. To facilitate
this transfer the Australian Protective Service would be established as a
Statutory Agency and the Commissioner of the Australian Federal Police would be
the Agency Head. Other amendments update terminology used from the repealed
Public Service Act 1922 to the terminology used in the Public Service
Act 1999, and address some minor administrative matters.
Item
1
This Item inserts a definition of the term APS
employee into subsection 3(1) of the Australian Protective Service
Act 1987 and provides that it has the same meaning as section 7 in the
Public Service Act 1999.
The definition provides that an
Australian Public Service employee is a person engaged by an Agency Head (as
defined) on behalf of the Commonwealth for the Agency.
The term is used
in proposed sections 5 and 23, and subsections 19(6), 20(4), 24(1) and 25(1)
(see Items 7, 15, 16, 18, 19 and 22).
Item 2
This Item
inserts a definition of the term Commissioner into subsection 3(1)
of the Australian Protective Service Act 1987 and provides that it has
the same meaning as the term “Commissioner of Police” referred to in
section 6 of the Australian Federal Police Act 1979.
The term is
used in a number of proposed sections specifying the functions and powers of the
Commissioner, namely sections 5, 7, 8, 10, 11, 23 and 27, and subsections 12(1),
25(1), 25(2) and 25(3) (see Items 7, 8, 9, 11, 12, 13, 17, 21, 23, 24 and
25).
Item 3
This Item omits redundant terminology
“such office in the Department as is” in the definition of
Director in subsection 3(1) of the Australian Protective Service Act
1987 and replaces it with the phrase “the position in the Protective
Service created”.
The word “office” is a reference to
terminology used in the repealed Public Service Act 1922. This
terminology is inconsistent with the Public Service Act 1999. The
amendment of “office” to “position” is a reflection of
the terminology used in the new Act.
The amendment of the word
“Department” to “Protective Service” reflects the
organisational rearrangement necessary to bring the Australian Protective
Service under the control and umbrella of the Commissioner of the Australian
Federal Police. The Australian Protective Service will no longer be part of the
Attorney-General’s Department or any other department. The Australian
Protective Service will be a Statutory Agency in its own
right.
Item 4
This Item makes equivalent amendments to
Item 3, replacing the words “such office in the Department as is”
with the words “a position in Protective Service created” in the
definition of protective service officer in subsection 3(1) of the
Australian Protective Service Act 1987.
Item
5
This Item repeals the definition of Secretary from
subsection 3(1) of the Australian Protective Service Act
1987.
With the transfer of responsibility for Australian Protective
Service from the Secretary of the Attorney-General’s Department to the
Commissioner of the Australian Federal Police, the Secretary will no longer be
Agency Head of the Australian Protective Service and will not be responsible for
the Service. Accordingly, the definition of the role of Secretary is now
redundant. The Commissioner will now be the Agency Head, as defined in section
7 of the Public Service Act 1999, for the purposes of that Act. That
means that the Commissioner will exercise employer powers, responsibilities and
functions in respect of the Australian Protective Service.
Item
6
This Item omits reference to “subsection 5(2)” in
subsection 3(2) of the Australian Protective Service Act 1987.
The
deletion of this subsection is a consequential amendment to the amendment to
section 5 (see Item 7). The existing reference has the effect that special
protective service officers are not to be considered to be protective service
officers for the purposes of defining the Protective Service. Under the
amendments to section 5, that section will now explicitly deal with that issue,
rather than it being dealt with by way of a cross-reference to section
3.
Item 7
This Item repeals the existing section 5 of
the Australian Protective Service Act 1987 which deals with the
establishment of the Australian Protective Service and substitutes a new section
5 that establishes the Australian Protective Service as a Statutory Agency. The
new section provides that the Commissioner of the Australian Federal Police and
Australian Protective Service employees assisting the Commissioner constitute a
Statutory Agency.
In addition, with the repeal of the reference to subsection 5(2) in
subsection 3(2) of the Australian Protective Service Act 1987 (see Item
6), the new section 5 clarifies the employment status of special protective
service officers. The reference to Australian Public Service employees in
subparagraph 5(2)(b) of the Bill, does not include special protective service
officers who are Australian Public Service employees in another Agency.
However, special protective service officers not employed by another agency
would be part of the new Australian Protective Service Statutory Agency. This
arrangement mirrors the current practice where such employees are part of
Attorney-General’s Department.
Item 8
This Item
repeals the current section 7 of the Australian Protective Service Act
1987 which gave the Secretary the power to designate an office in the
Department that the Director of the Protective Service occupied, and substitutes
a new section 7 which gives the Commissioner of the Federal Police the power to
create a position in the Australian Protective Service the occupant of which is
to be the Director of the Protective Service.
This amendment facilitates
the transfer of responsibility for the Australian Protective Service from the
Secretary of the Attorney-General’s Department to the Commissioner of the
Australian Federal Police. The change from the terminology of
‘office’ to ‘position’ reflects the contemporary
terminology and approach under section 77 of the Public Service Act 1999.
Section 77 allows an Agency Head to create positions in an Agency. This
decision can be varied or revoked pursuant to the general powers under section
33 of the Acts Interpretation Act 1901. This variation and revocation
power also applies to the current provision.
Item
9
This Item repeals the current section 8 of the Australian
Protective Service Act 1987 which provided that the Secretary may designate
specified officers in the Department as protective service officers, and
substitutes a new section 8 which gives the Commissioner of the Australian
Federal Police power to create positions in the Australian Protective Service
the occupants of which are protective service officers.
The explanation
for the change from the terminology of ‘office’ to
‘position’ and the scope to vary or revoke a decision is the same as
for Item 8.
Item 10
This Item omits the words
“his or her office unless the protective service officer” in section
10 of the Australian Protective Service Act 1987, and substitutes the
words “a protective service officer unless he or
she”.
The word “his or her office” is a reference to
terminology used in the repealed Public Service Act 1922. This
terminology is inconsistent with the Public Service Act 1999 it is
appropriate to refer to a protective service officer rather than the office they
hold.
This Item replaces the word “Secretary” in section 10 of the
Australian Protective Service Act 1987 with the word
“Commissioner”. The Commissioner will now be the Agency Head, as
explained in relation to Item 5.
This Item makes the same amendments as does Item 5, replacing the word
“Secretary” in section 11 of the Australian Protective Service
Act 1987 with the word “Commissioner”. The Commissioner will
now be the Agency Head, as explained in relation to Item 5.
This Item makes the same amendments as does Item 5, replacing the word
“Secretary” in section 12 of the Australian Protective Service
Act 1987 with the word “Commissioner”. The Commissioner will
now be the Agency Head, as explained in relation to Item 5.
This Item repeals the current subsection 12(3) of the Australian
Protective Service Act 1987 which covered inconsistency between General
Orders and current legislation and determinations made under section 24 of the
Public Service Act 1999. The subsection is replaced with a new
subsection 12(3) which clarifies that General Orders are not only subject to the
Australian Protective Service Act 1987, other Acts, regulations and
determinations under section 24 of the Public Service Act 1999, but also
should be subordinate to the directions issued by the Public Service
Commissioner under section 11, 15 and 36, the Prime Minister under section 21,
and Classification Rules made under section 23 of the Public Service Act
1999. This accords with general Government policy.
This Item omits the words “a person occupying such office in the
Department as” in subsection 19(6) of the Australian Protective Service
Act 1987 and substitutes “the APS employee in the Protective Service
who”.
The change from “Department” to “Protective
Service” reflects the organisational rearrangement necessary to bring the
Australian Protective Service under the control and umbrella of the Commissioner
of the Australian Federal Police. The Australian Protective Service will no
longer be part of the Attorney-General’s Department.
The
explanation for the change from the terminology of ‘office’ to
‘position’ and the scope to vary or revoke a decision is the same as
for Item 8.
This Item omits reference to “a person occupying such office in the
Department as” and substitutes “the APS employee in the Protective
Service who” from subsection 20(4). This is consistent with the change in
Item 15.
This Item makes the same amendments as does Item 5, replacing the word
“Secretary” in section 23 of the Australian Protective Service
Act 1987 with the word “Commissioner”. The Commissioner will
now be the Agency Head, as explained in relation to Item 5.
This Item omits “the person occupying a specified office in the
Department”, and substitutes “an APS employee in the Protective
Service” in section 23. This is consistent with the change in Item
16.
Item 19
This Item amends subsection 24(1) so that
the powers that can be delegated by the Director under this provision can be
delegated not only to protective service officers but also to Australian Public
Service employees who are not protective service officers. This is because the
kinds of powers involved are of an administrative nature for which an
administrative/personnel delegate may well be more appropriate than a sworn
officer. Examples of relevant powers are the power to issue identity cards
(section 20) and the power to exempt an officer from wearing a uniform (section
19) in certain circumstances such as upon client requests, security purposes or
for a graduated return to work program for operational staff. The officer in
charge of corporate services may well be the most appropriate delegate for these
kinds of powers, and this officer is unlikely to be a sworn protective service
officer.
The Director may delegate all or any of the powers of Director
under the Australian Protective Service Act 1987, other than this power
of delegation (section 24) and the power to issue General Orders (section 12).
In addition to the power to exempt an officer from wearing a uniform (section
19) and issue identity cards (section 20), the Director may delegate the power
to appoint as a special protective service officer a person who is appointed or
engaged under the Public Service Act 1999 (section 9) and may delegate
responsibility for the general administration of, and the control of the
operations of, the Protective Service (section 11). The Director may not
delegate his/her powers or duties as a protective service officer.
It is
important to emphasise that the power of delegation only extends to powers under
the Australian Protective Service Act 1987, not powers under other
legislation (eg, the Public Service Act 1999).
This Item omits all the words after “Director under this” in
subsection 24(1) of the Australian Protective Service Act 1987, and
substitutes a provision that provides that in addition to the power of
delegation and the power to issue general orders, the Director cannot delegate
the powers exercised by the Director as a protective service officer. This
amendment is consistent with the current provisions concerning the delegable
powers of the Director under the Australian Protective Service Act 1987,
and is for clarification purposes only.
Item 21
This
Item replaces the word “Secretary” in subsection 25(1) (wherever
occurring) of the Australian Protective Service Act 1987 with the word
“Commissioner”, for the reasons explained in relation to Item 5.
The Commissioner will now be the Agency Head, as explained in relation to Item
5.
Item 22
This Item amends subsection 25(1) so that
the powers that can be delegated by the Commissioner (namely, the power to
authorise a person to take an oath under this provision) can be delegated not
only to protective service officers but also to Australian Public Service
employees who are not protective service officers.
Item
23
This Item makes the same amendments as does Item 5, replacing the
word “Secretary” in subsection 25(2) of the Australian Protective
Service Act 1987 with the word “Commissioner” for the reasons
explained in relation to Item 5.
This Item makes the same amendments as does Item 5, replacing the word
“Secretary” in subsection 25(3) (wherever occurring) of the
Australian Protective Service Act 1987 with the word
“Commissioner” for the reasons explained in relation to Item 5.
Item 25
This Item inserts a new section 27 in the
Australian Protective Service Act 1987, which provides for an annual
report to the Minister and Parliament on the administration and operations of
the Australian Protective Service. This is a standard annual reporting
provision. Subsection 27(2) would allow the Commissioner of the Australian
Federal Police to combine the reporting requirements of section 70 of the
Public Service Act 1999 and section 67 of the Australian Federal
Police Act 1979 into the one report. This will facilitate the Commissioner
in providing the Minister and Parliament with an integrated account of
Australian Protective Service and Australian Federal Police
operations.
Item 26
This Item will ensure that the
existing Director and existing protective service officers can remain in these
positions notwithstanding the amendments to the governing provisions, sections 7
and 8. This is a standard transitional provision.
Item
27
This Item will ensure that an oath or affirmation made or
subscribed under section 10 of the Australian Protective Service Act 1987
in force immediately before the commencement of this Act, is also taken to be an
oath or affirmation made or subscribed under that section as amended by this
Bill.
Item 28
This Item will ensure that existing
General Orders can remain in effect notwithstanding the amendments to the
governing provision, section 12. This is a standard transitional
provision.
Item 29
This Item will ensure that existing
certificates certifying a person to be a protective service officer can remain
in effect notwithstanding the amendments to the governing provision, section 23.
This is a standard transitional provision.