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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This instrument sets out the circumstances when written notice is not
required before a decision is made to terminate an Australian
Defence Force
member's service
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Portfolio
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Veterans Affairs
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Authorising legislation
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Last day to disallow
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15 sitting days after tabling (tabled in the House of Representatives 13
February 2020 and in the Senate on 24 February 2020).
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Right
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Work
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Status
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Concluded
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2.24 The committee requested a response from the minister in relation to the regulations in Report 4 of 2020.[2]
2.25 These regulations amend section 24 of the Defence Regulation 2016 to establish two new grounds on which the employment of a member of the Australian Defence Force (ADF) may be terminated without written notice. These grounds are where the member has been imprisoned for an offence; or where they have pleaded guilty to, or been convicted of, an offence and the Chief of the Defence Force is satisfied that it is not in the interests of the defence force for notice to be given to them.[3]
2.26 The regulations also remake what currently exists in section 24, to provide that a member's employment may be terminated without written notice where: the appointment or enlistment is subject to a probationary period; they have failed to meet a condition of their appointment or enlistment; or they have been absent without leave for a continuous period of three months or more.
2.27 Providing that an ADF member's employment may be terminated without notice to them, for reasons related to their conduct or performance, engages and may limit the right to work. The right to work includes a right not to be unfairly deprived of work.[4] A person's employment must not be terminated for reasons related to their conduct or performance before they are provided an opportunity to defend themselves against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.[5] Any decision to terminate employment should be 'preceded by dialogue and reflection between the parties'.[6]
2.28 The right to work may be limited, provided limitations are prescribed by law, pursue a legitimate objective, are rationally connected to (that is, effective to achieve) that objective, and are a proportionate means of achieving that objective.[7]
2.29 It is unclear whether terminating a member's employment without notice where they have failed to meet a condition of their appointment or enlistment, or where they have been absent without leave for three months or longer is a permissible limitation. In particular, it is noted that the ability to terminate without notice could apply for a failure to meet any condition of a member's employment. It is unclear why a member should not be notified of a decision to terminate their employment in such circumstances.
2.30 The initial analysis considered that in order to assess the compatibility of the entirety of the measure with the right to work, further information was required as to:
• whether terminating the employment of an ADF member for failure to meet a condition of their employment or enlistment, or being absent without leave, without notifying them of the decision, is compatible with the right to work; and
• in the absence of notification, what opportunities ADF members would have to respond to allegations related to a failure to meet a condition of their employment or service, or to an absence without leave, prior to their employment being terminated.
2.31 The full initial legal analysis is set out in Report 4 of 2020.
2.32 The committee noted the legal advice that the measure engages and may limit the right to work, and in order to assess compatibility with the right to work the committee sought the minister's advice as to the matters set out at paragraph [2.30].
2.33 The Department of Defence advised:
Section 24 of the Regulation, as amended by the Amending Regulations, provides for termination of service in the Australian Defence Force (ADF). Subsection (1) provides three grounds on which a member’s service can be terminated: medical unfitness, redundancy and retention not in the interests of the Defence Force. Subsection (2) provides that 14 days written notice must be provided to the member before making a decision to terminate their service. Subsection (3) provides that, in certain circumstances, the notice requirement in subsection (2) does not apply. This includes in the two circumstances of concern to the Committee: where the member has failed to meet a condition of the appointment or enlistment (paragraph 24(3)(b)(i)) and where the member has been absent without leave for a period of three months or more (paragraph 24(3)(b)(iii)).
While subsection (3) exempts certain decisions from the statutory requirement in subsection (2) to provide 14 days written notice, it does not exclude the requirements of procedural fairness more generally. The obligation to provide procedural fairness is a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of a particular case (Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585). The requirements of procedural fairness are not fixed, and will vary depending on the statutory context in which a decision is to be made, and the specific circumstances in which the decision will be made.
For termination decisions that meet the requirements in paragraph 24(3)(b)(i) or (iii), the statutory context means that the requirements of procedural fairness would not include a requirement to provide 14 days written notice. It does not follow, however, that termination decisions of this sort would never require that the member be given notice and an opportunity to respond. This would depend on all of the particular circumstances. Relevant matters in determining fair procedures when making these decisions could include, for example, the nature of the condition on their appointment or enlistment, previous discussions with the member in relation to meeting the condition, or previous correspondence with the member while they were absent without leave. Regardless of the procedures adopted in relation to a particular termination decision, the rule against bias and the obligation to act reasonably remain.
The decision-maker must adopt fair procedures that are appropriate and adapted to the circumstances of the particular case. This means that, except in extraordinary circumstances, a decision-maker would generally only be able to make a termination decision after providing an ADF member with some sort of opportunity to address the matters of concern. That is, even though section 24(3) excludes the requirement to provide notice in a particular way (14 days written notice), it is compatible with the right to work because the decision-maker must still adopt fair procedures that are appropriate and adapted to the circumstances.
It would be unusual to contemplate termination of an ADF member’s service where they have failed to meet a condition of appointment or enlistment, without the member having been made aware of the problem previously and given an opportunity to address it. A common example of a condition on appointment or enlistment is to complete certain training within a specified period. ADF members are made aware of this condition at the time of appointment or enlistment, and, generally, if an ADF member is at risk of not completing required training, they will be made aware of this (including the possible consequences of failing the complete the required training), and given opportunities to improve. If the ADF member fails to complete the required training in time, and termination is contemplated, the procedures adopted in relation to that decision must be reasonable, taking account of previous opportunities the ADF member has had to address the issue.
Similarly, it would be unusual to contemplate termination of an ADF member’s service where they have been absent without leave for 3 months or more without having made attempts to locate and talk to the ADF member about the reason for their absence, and the possible consequences of their continued absence.
Applying the 14 day written notice requirement in s 24(2) to these sorts of decisions would result in duplication of process, without making any substantive difference to the fairness of the process followed or decisions made under section 24. The flexible obligation to adopt fair procedures that are appropriate and adapted to the particular circumstances of the case means that ADF members’ right to work are protected, notwithstanding the exclusion of the 14 day written notice requirement in subsection 24(3).
The effect of the Amending Regulations is not, therefore, to impermissibly limit the right to work with respect to ADF members.
2.34 In response to the question of whether terminating the employment of an ADF member for specified reasons without providing 14 days written notice is compatible with the right to work, the response advises that while these specific decisions are exempt from the statutory requirement to provide written notice, it does not exclude the requirements of procedural fairness more generally, which vary according to the particular statutory context and specific circumstances of each case. The response further explains that although the regulations now provide that there is no specific requirement to provide 14 days written notice, this does not mean that termination decisions of this sort would never require that the member be given notice and an opportunity to respond, which would vary on a case by case basis. The response further states that regardless of the procedures adopted, the rule against bias and the obligation to act reasonably remain.
2.35 With respect to the question as to the opportunities ADF members would have to respond to allegations prior to their employment being terminated, the response states that, except in extraordinary circumstances, a decision-maker would generally only be able to make a termination decision after providing an ADF member with some sort of opportunity to address the matters of concern.
2.36 In light of this response that the ADF will continue to adopt fair procedures that are appropriate and adapted to the particular circumstances of the case, it appears likely that amending the regulations to exclude a specific requirement to provide 14 days written notice before terminating an ADF member's employment in particular circumstances is not an impermissible limitation on the right to work.
2.37 The committee thanks the Department of Defence for this response. The committee notes that the regulations set out the circumstances in which written notice is not required before a decision is made to terminate an Australian Defence Force (ADF) member's service.
2.38 In light of the advice that the ADF will continue to adopt fair procedures that are appropriate and adapted to the particular circumstances of the case, the committee considers that it is likely that the measure is not an impermissible limitation on the right to work.
2.39 The committee considers it may be useful if the statement of compatibility accompanying the regulation were amended to include the information provided by the Department.
Senator the Hon Sarah Henderson
Chair
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Defence Amendment (2020 Measures No. 1) Regulations 2020 [F2020L00120], Report 6 of 2020; [2020] AUPJCHR 85.
[2] Parliamentary Joint Committee on Human Rights, Report 4 of 2020 (9 April 2020), pp. 6-8.
[3] Schedule 1, Item 5, subsection 24(3). The reasons for something being or not being in the interests of the defence force are set out at subsection 6(2) of the regulations, and expanded by this instrument to include a member’s failure to meet one or more conditions of the member’s enlistment, appointment or promotion. See, Schedule 1, Item 1, subsection 6(2)(c).
[4] See, International Covenant on Economic, Social and Cultural Rights, articles 6-7.
[5] International Labour Organization (ILO) Convention 158 , article 7 and ILO, Protection against Unjustified Dismissal, [146].
[6] ILO, Protection against Unjustified Dismissal, [148].
[7] See, for example, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005); Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.
[8] The Department of Defence's response to the committee's inquiries was received on 12 May 2020. This is a departmental response, however, it has been advised that the Minister for Defence, Senator the Hon Linda Reynolds CSC, and the Minister for Veteran’s and Defence Personnel, the Hon Darren Chester MP have approved this response. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
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URL: http://www.austlii.edu.au/au/other/AUPJCHR/2020/86.html