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Defence (Personnel) Amendment Regulation 2013 (No. 1)

FRLI ID: F2013L00389

Portfolio: Defence Science and Personnel

Summary of committee view

2.72      The committee intends to write to the Minister for Defence Science and Personnel to seek information as to whether the fit and proper person test and the power to terminate employment based on any criminal conviction is consistent with the right to privacy.

Overview

2.73      The purpose of this instrument is to amend the Defence (Personnel) Regulations 2002 in response to several reviews that were conducted into aspects of Defence and the ADF culture during 2011-12.

2.74      The instrument inserts a new common termination provision for both officers and enlisted members to provide for performance, behaviour, or conviction of an offence or a service offence, as reasons that may lead to termination.

2.75      The instrument also inserts a fit and proper person provision into the mandatory list of criteria that a decision-maker must consider when making a decision that affects an individual ADF member, for example, appointment or enlistment, promotion, posting or termination decisions. The provisions are intended to ensure that a decision-maker considers whether an individual is of good character having regard to their past and present conduct. For example, this would require a decision-maker to take into account the criminal and ADF disciplinary record of an individual when making a decision about them.

2.76      The statement of compatibility explains that these amendments were based on recommendations from Defence reviews, in particular, in relation to combating unacceptable sexual conduct in the ADF and unacceptable sexual conduct towards women.

Compatibility with human rights

2.77      The statement of compatibility states that the amendments relating to the new common termination provision do not engage any human rights. 

2.78      In relation to the insertion of the fit and proper person test the statement only discusses its impact on the right to work and rights at work and the rights of equality and non-discrimination. However, these provisions would appear to engage the right to privacy and reputation as guaranteed in article 17 of the International Covenant on Civil and Political Rights (ICCPR).

2.79      The statement of compatibility states that the objective of the fit and proper person assessment is to ensure that all relevant information including criminal history, and in particular sexual criminal history, is available to a decision-maker when making a decision about whether an ADF member is able to perform the inherent requirements of their job.

2.80      The statement suggests that the addition of a fit and proper person assessment for decision-makers will contribute to the overall quality, conduct and character of ADF members. It is suggested that where an individual has a criminal history or incident which could be clearly considered to impact on the ADF and its members the decision-maker can establish links between the level of offence, the inherent requirements of the job and the need to provide a safe and healthy workplace, particularly for women.

2.81      Contributing to the overall quality, conduct and character of ADF members as outlined above would appear to be a legitimate objective. However, the fit and proper person assessment is worded in a very general manner. New subregulation 7(3) provides that 'If the decision or determination relates to an individual, the person must consider whether, having regard to the individual’s past and present conduct, the individual is of good character.' The explanatory statement notes that this would require a decision-maker to take into account the criminal and ADF disciplinary record of an individual when making a decision about them.

2.82      It is not clear whether there are any limitations on the types of criminal records or other matters that may be taken into consideration under the new fit and proper person assessment or the new common termination provision. These provisions may therefore limit the right to privacy if information about personal circumstances, events or convictions that are not relevant to a person's current fitness or capacity to serve in the ADF are considered by decision-makers. For example, it is not clear if information about spent convictions or incidents that occurred a significant amount of time in the past will be considered under the new fit and proper person assessment or the new termination provision. It is also not clear why the new provisions apply to all convictions, including convictions for very minor offences, particularly when the stated intention was to combat unacceptable sexual conduct in the ADF and unacceptable sexual conduct towards women.

2.83             The committee intends to write to the Minister for Defence Science and Personnel to seek information as to whether the fit and proper person test and the power to terminate employment based on any criminal conviction is consistent with the right to privacy.

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