Employment Suitability Screening - Home Affairs

Employment Suitability Screening Policy Statement and Procedural Instruction

Document ID (PPN) SM-1554

TRIM record number ADD2020/4981881

BCS Function Strategic management and governance

Document owner Assistant Secretary Integrity and Professional Standards

Approval date 9 September 2020

Document Contact Pre-employment Screening Section

[email protected]

Page 2 of 15Employment Suitability Screening

Table of Contents

1. Purpose 3

2. Scope 3

3. Policy Statement 3

4. Procedural Instruction 4

4.1. Validity and re-screening 4

4.2 Decisions regarding individuals outside the scope of this Policy Statement and Procedural

Instruction 4

4.3. Waivers and mutual recognition 4 Waivers 4 Mutual recognition 4

4.4. Consequences of a failure to hold/maintain an employment suitability clearance 5

4.5. Procedural fairness and review rights 5 Right to reply 5 Failure to maintain an essential qualification 6

4.6. Transitional arrangements 6 Individuals who have undergone employment suitability screening through the former Australian Customs and Border Protection Service (ACBPS) 6 Individuals who have undergone employment suitability screening through the former Department of Immigration and Border Protection (DIBP) 6 Existing aftercare provisions to remain in effect 6 Individuals who have previously received an adverse ESC, OSA or ‘fit and proper person’ assessment 6

5. Accountability and Responsibility 7

Statement of expectations 7

6. Version Control 8

Attachment A – Definitions 8

Attachment B – Assurance and Control Matrix 10

1.1. Powers and Obligations 10

1.2. Controls and Assurance 13

Attachment C – Consultation 15

1.1. Internal Consultation 15

1.2. External Consultation 15


1. Purpose

The Department of Home Affairs (the Department) is a central policy agency, providing coordinated strategy and policy leadership for Australia’s national and transport security, federal law enforcement, criminal justice, cyber security, border, immigration, multicultural affairs, emergency management and trade related functions. The Department is central to how the Australian Government responds to terrorism, cyber threats and tackles organised crime. Its role includes working internationally to manage migration and humanitarian programs, facilitating trade and travel, and managing responses to natural disasters.

The Department and its staff have a broad range of powers and responsibilities, as well as access to a significant amount of personal and sensitive information which if used incorrectly could have serious consequences to the safety, security and prosperity of our nation.

The work of the Department and the information that is held by (or available to) the Department is of significant value to organised crime and a range of other entities who may seek to act against Australia’s interests or exploit Immigration and Border Protection (IBP) workers to further their criminal enterprises or for financial gain.

Within this context, the Australian Government’s Protective Security Policy Framework (PSPF) contains the controls used by the Australian Government to protect its people, information and assets. The PSPF places a range of mandatory obligations on the Department, including a requirement for the Department to:

undertake pre-employment screening of all IBP workers, and

actively monitor and manage the ongoing suitability of all IBP workers.

The Department’s Employment Suitability Screening (ESS) process is designed to meet all mandatory and recommended pre-employment screening and ongoing suitability checks required under the PSPF, including a range of agency-specific checks over and above the minimum recommended standard in the PSPF. These checks are designed to mitigate against the Department’s specific threat environment, so as to provide assurance to the community that there are minimal risks associated with an individual or their circumstances which may:

cast doubt on an individual’s ability to support the Department to achieve its mission; or

otherwise reduce the confidence the community places in the Department to maintain the integrity and security of Australia’s borders.

2. Scope This combined Policy Statement and Procedural Instruction (PI) applies to all IBP workers and outlines the Department’s requirements for its ESC process. It is supported by a number of related and subsidiary documents as outlined in Attachment B.

3. Policy Statement To meet the Department’s obligations under the PSPF, the Secretary has determined that:

in the case of Department employees, an Employment Suitability Clearance (ESC) and a minimum Baseline security clearance are ‘essential qualifications’ and thus:

o a condition of engagement for the purposes of paragraphs 22(6)(c) and 22(6)(d) of the Public Service Act 1999 (Public Service Act), and

o a condition of ongoing employment.


in the case of all other IBP workers who require non-public access to departmental assets, an ESC and a minimum Baseline security clearance are a mandatory precondition of being provided such access.

All assessments will be undertaken in accordance with:

the Department’s Employment Suitability Screening assessment criteria and process arrangements outlined in the Employment Suitability Screening Supporting Materials (at Attachment B).

4. Procedural Instruction

4.1. Validity and re-screening

An ESC may be granted by the decision maker wholly or subject to conditions (Aftercare Arrangements). Once an ESC is granted, the clearance holder’s ESC remains valid unless or until:

the clearance holder meets an automatic revocation trigger, or

12 months has elapsed since the clearance holder has required non-public access to Department resources.

An ESC remains valid until it is revoked or expires as outlined above. However, once granted, an individual may be selected at any time to undergo re-screening of their suitability to hold an ESC.

4.2. Decisions regarding individuals who may be outside the scope of this Policy Statement and Procedural Instruction

Where a business area has undertaken a risk assessment and believes that an external contractor or consultant should not fall within the scope of this policy, the business area must complete an Assessment Against Scope of Policy form and send to I&PS Branch. The Assistant Secretary of I&PS Branch will consider any such assessment and make the final decision as to whether the role falls outside the scope of this policy.

4.3. Waivers and mutual recognition

Waivers

In temporary and exceptional circumstances, the decision maker may grant any individual an ESC Waiver. A request for an ESC Waiver must be provided to the Assistant Secretary I&PS Branch, who is the decision maker and delegate for waiver requests.

For more information on waivers, contact [email protected].

Mutual recognition

Where a clearance applicant has been subject to a similar employment suitability screening process by an employer within the Home Affairs portfolio, the decision maker may:

recognise some or all of the suitability checks undertaken by that employer, or

request that employer to undertake specific suitability checks on behalf of the Pre-employment Screening Section.

A decision to recognise some or all of the suitability checks undertaken by a past employer may be made at the sole discretion of the decision maker. All decisions will be made on a case-by-case basis.


4.4. Consequences of a failure to hold/maintain an employment suitability clearance

If an individual is not granted an ESC:

existing departmental employees – this may result in having their employment terminated pursuant to section 29 of the Public Service Act;

existing contracted staff or service providers – this may result in the individual being denied their existing access to departmental assets, being removed from the performance of services or having their contract with the Department terminated;

existing employees of other government agencies – this may result in the individual being denied their existing access to departmental assets and being returned to their home agency;

prospective departmental employees – this may result in the individual not being offered employment with the Department (or having their employment offer retracted) on the grounds that the individual is unable to obtain an essential qualification required for employment with the Department; or

prospective contracted staff or service providers – this may result in the individual not being eligible to be provided with non-public access to departmental assets.

The outcomes that may occur as a result of the initial employment suitability screening process or a re-screening process are further detailed in the Employment Suitability Screening Supporting Materials.

4.5. Procedural fairness and review rights

Right to reply

Employees of the Commonwealth have a right to know and reply to any matter that may adversely affect them arising through an employment suitability screening process. This may include, but is not limited to, circumstances where the decision maker is:

required to consider adverse (or potentially adverse) information;

considering granting a conditional ESC;

considering not granting an ESC.

As a general principle, the decision maker will endeavour to disclose all credible, relevant and significant potentially adverse information to an employee so that they can respond before a final decision is made. This disclosure may be in writing or by way of a formal interview.

However, there are situations – particularly in a national security and law enforcement context – where the decision maker’s ability to disclose adverse information may be limited. This may include situations where:

the disclosure may jeopardise or compromise intelligence information;

the disclosure may prejudice national security;

the information may be subject to disclosure caveats or is otherwise privileged, or

the disclosure may not be in the national interest.

Such cases will be the exception rather than standard practice. Where the decision maker is considering withholding adverse information, the decision maker must consult with Legal Group.


Failure to maintain an essential qualification

Any employee who is employed under the Public Service Act and whose employment is terminated for failing to maintain an essential qualification is entitled to make a claim for unfair dismissal under the Fair Work Act 2009.

Any non-Senior Executive Service (SES) employee who is employed under the Public Service Act is entitled to seek a review of action pursuant to section 33(1) of the Public Service Act while they are an employee.

Any individual is entitled to seek independent legal advice on other avenues of review, subject to compliance with the relevant legislative disclosure power applicable to the Department at the time.

4.6. Transitional arrangements

All individuals that are subject to this PI must undergo employment suitability screening and obtain an ESC.

The Department requires that all individuals who are subject to this PI (including, but not limited to, all new

employees, secondees, internal and relevant external contractors and consultants) must obtain an ESC prior

to commencing / on-boarding into the Department.

It is however recognised that some individuals with existing non-public access to departmental assets may have been on-boarded before 1 July 2015 (the date of commencement of the Department’s Integrity Framework) and thus may not currently hold an ESC. In such cases, these individuals will be permitted to retain their existing non-public access to the Department’s assets. These individuals may however be directed at any time to undergo employment suitability screening and obtain an ESC.

Individuals who have undergone employment suitability screening through the former Australian Customs and Border Protection Service (ACBPS)

Where an individual:

holds an endorsed Organisational Suitability Assessment (OSA) issued by the former ACBPS, with or without Aftercare Arrangements, that individual is deemed to have been granted an ESC.

holds an endorsed ‘fit and proper person’ assessment (marine contractor or container examination facility truck driver) issued by the former ACBPS, with or without Aftercare Arrangements, that individual is deemed to have been granted an ESC.

Individuals who have undergone employment suitability screening through the former Department of Immigration and Border Protection (DIBP)

Where an individual:

holds an endorsed Employment Suitability Clearance issued by the former DIBP, with or without Aftercare Arrangements, that individual is deemed to have been granted an ESC.

Existing aftercare provisions to remain in effect

Where an individual’s ESC, OSA or ‘fit and proper person’ is subject to an existing Aftercare Arrangement (however described), that Aftercare Arrangement remains in effect until it expires in accordance with its established terms.

Individuals who have previously received an adverse ESC, OSA or ‘fit and proper person’ assessment

Where an individual has previously applied for an ESC, OSA or a ‘fit and proper person’ assessment through the former ACBPS or DIBP and received an adverse assessment, the individual will be required to submit


any information they believe will be relevant to an assessment (against the Department’s Employment Suitability Clearance Assessment Criteria) within a set timeframe. This process will be managed by I&PS Branch.

The decision maker may, at their discretion, direct such individuals to not attend the workplace or be placed on paid administrative leave or an Aftercare Arrangement until the employment suitability screening process has been finalised.

5. Accountability and Responsibility

Role Description

All individuals who are subject to this PI

Comply with this PI

Line managers and contract managers

Ensure all IBP workers they manage or are recruiting are aware of their obligations regarding this PI, including ensuring all IBP workers hold an ESC prior to on-boarding into the Department

Pre-employment Screening Section and Personnel Security and Suitability Section.

Responsible for:

Undertaking all ESSs in line with this PI.

Managing personnel security risks posed by prospective and existing employees.

Providing advice and guidance on the ESS process.

Development and maintenance of ESS policies and procedures.

Director Pre-employment Screening

Responsible for ensuring this PI complies with the Department’s mandatory obligations under the Protective Security Policy Framework.

Assistant Secretary I&PS Branch

Owner of this PI and responsible for the development, review and approval of the PI.

Statement of expectations The APS Code of Conduct states that ‘an APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction’ (subsection 13(5) of the Public Service Act). Failure by an APS employee to comply with any direction contained in a PPCF document may be determined to be a breach of the APS Code of Conduct, which could result in sanctions up to and including termination of employment, as set out in subsection 15(1) of the Public Service Act. The Secretary’s Professional Standards Direction, issued under subsection 55(1) of the ABF Act, requires all IBP workers who are not APS employees (such as contractors or consultants) to comply with any lawful and reasonable direction given by someone in the Department with authority to issue that direction. Failure by an IBP worker who is not an APS employee to comply with a direction contained in a PPCF document may be treated as a breach of the Professional Standards Direction, which may result in the termination of their engagement under section 57 of the ABF Act. Non-compliance may also be addressed under the terms of the contract engaging the contractor or consultant.


6. Version Control

Version number

Date of issue Author(s) Brief description of change

1.0 1 July 2015 I&PS Branch Initial instruction

1.1 7 June 2019 Revisions and change of template I&PS Branch

1.2 24 July 2020 Incorporating feedback, minor edits I&PS Branch

1.3 28 July 2020 Revisions and minor edits I&PS Branch

Attachment A – Definitions

Term Acronym

(if applicable Definition

Aftercare arrangements

Arrangements established between an individual and the Department, designed to manage and/or mitigate any risks to the Department or an individual which may be identified during the employment suitability screening process

Decision maker The individual or individuals within the Department who have been authorised by the Secretary to make decisions in relation to employment suitability matters.

Departmental assets Includes (but is not limited to) any information and technology systems (ICT systems), information, plant and equipment, vessel, aircraft and/or premises that is owned, operated, managed, controlled, leased or contracted by the Department

Employment suitability clearance

ESC An essential qualification for engagement and employment with the Department.

Employment suitability screening

ESS A process to determine whether an individual is suitable to have non-public access to departmental assets.

Employment suitability screening support materials

The Supporting Materials titled Employment Suitability Screening Process and Employment Suitability Clearance Assessment Criteria

Employment suitability screening policy

This policy document, as well as any associated policy or process documents.


Term Acronym

(if applicable Definition

Employment suitability screening process

This includes:

any initial employment suitability screening process

any employment suitability re-screening process

any employment suitability continuous assurance process undertaken pursuant to this or a related policy.

Immigration and Border Protection Worker

IBP Worker Defined in the Secretary’s Determination of Immigration and Border Protection Workers and under subsection 4(1) of the ABF Act, includes but is not limited to:

all APS employees in the Department

persons employed by an Agency under the Public Service Act 1999 whose services are made available to the Department (often referred to as ‘secondees’)

persons engaged as consultants or contractors to perform services for the Department in-house in the Department

persons engaged as consultants or contractors to performing services for the department that require non-public access to departmental assets .

Non-public access Ongoing or unrestricted access to departmental assets which are not available to members of the public.


Attachment B – Assurance and Control Matrix

1.1. Powers and Obligations

Legislative Provision

Is this a delegable power?

If delegable, list the relevant instruments of delegation Legislation

Reference

(e.g. section) Provision

Australian Border Force Act 2015

s55 (1) The Secretary may, by writing, give directions to Immigration and Border Protection workers in connection with the administration and control of the Department.

Essential qualifications

(2) Without limiting subsection (1), directions under that subsection may relate to the essential qualifications for Immigration and Border Protection workers for performing their duties.

(3) Without limiting subsection (2), essential qualifications may have one or more of the following components:

a. physical or psychological health or fitness;

b. professional or technical qualifications;

c. learning and development requirements;

d. security clearances.

Organisational suitability assessments

(4) Without limiting subsection (1), directions under that subsection may relate to organisational suitability assessments.

Reporting of serious misconduct or criminal activity

(5) Without limiting subsection (1), directions under that subsection may relate to the reporting by Immigration and Border Protection workers of the following:

No N/A





Reference


a. serious misconduct by such a worker;

b. criminal activity involving such a worker;

where the serious misconduct or criminal activity affects, or is likely to affect, the operations, responsibilities or reputation of the Department.

Relationship with directions under section 26

(6) A direction under this section prevails over a direction under section 26 to the extent of any inconsistency.

Compliance with directions

(7) An Immigration and Border Protection worker must comply with a direction under this section.

Australian Border Force Act 2015

s57 (1) If:

a. a person is covered by paragraph (e) of the definition of Immigration and Border Protection worker in subsection 4(1); and

b. the person fails to comply with a direction under section 26, 27, 35, 36, 55 or 56 or subsection (2) of this section or with a requirement under subsection 34(1);

the Secretary or the Australian Border Force Commissioner may terminate the person’s engagement as a consultant or contractor.

(2) If:

a. a person (the affected person) is covered by paragraph (f) of the definition of Immigration and Border

No N/A





Reference


Protection worker in subsection 4(1); and

b. in connection with that person, paragraph (e) of that definition covers a person (the consultant/contractor); and

c. the affected person fails to comply with a direction under section 26, 27, 35, 36, 55 or 56 or with a requirement under subsection 34(1);

the Secretary or the Australian Border Force Commissioner may, by writing, direct the consultant/contractor to arrange for the affected person to cease to perform services for the Department.

(3) Subsection (1) does not limit the circumstances in which a person’s engagement as a consultant or contractor may be terminated.

Public Service Act 1999 s29 (1) An Agency Head may at any time, by notice in writing, terminate the employment of an APS employee in the Agency.

(2) For an ongoing APS employee, the notice must specify the ground or grounds that are relied on for the termination.

(3) For an ongoing APS employee, the following are the only grounds for termination:

a. the employee is excess to the requirements of the Agency;

b. the employee lacks, or has lost, an essential qualification for performing his or her duties;

c. non performance, or unsatisfactory performance, of duties;

No N/A





Reference


d. inability to perform duties because of physical or mental incapacity;

e. failure to satisfactorily complete an entry level training course;

f. failure to meet a condition imposed under subsection 22(6);

g. breach of the Code of Conduct;

h. any other ground prescribed by the regulations.

(4) The regulations may prescribe the grounds for the termination of the employment of non ongoing APS employees.

(5) Subsection (4) does not, by implication, limit the grounds for termination of the employment of a non ongoing APS employee.

1.2. Controls and Assurance

Procedures / Supporting Materials

Protective Security Policy Framework

AGSVA Security Clearances PI (PPN SM-1550)

Declarable Circumstances PI (PPN SM-1552) Materials

Declarable Associations PI (PPN SM-1551)

Conflict of Interest PI (PPN SM-1556)

Mandatory Reporting PI (PPN SM-1557)

Procedures for Determining Suspected Breaches of the Code of Conduct PI (PPN SM-1547)

Drug and Alcohol Testing PI (PPN SM-6177)

Use of Social Media and Other Online Services PI (PPN SM-1560)


Procedures / Supporting Materials

Secretary Determination of Immigration and Border Protection Workers

Secretary Determination 1 of 2015 – Professional Standards Secretary Determination 2 of 2015 – Employment Suitability and

Security Screening Secretary Determination 3 of 2015 – Integrity Measures

Employment Suitability Clearance Assessment Criteria Supporting Material (PPN SM-1553)

Employment Suitability Screening Process Supporting Material (PPN SM-1555)

Training/Certification or Accreditation

The Essentials mandatory eLearning module

Other required job role requirements

Employment Suitability Clearance

Baseline Security Clearance

Other support mechanisms (eg who can provide further assistance in relation to any aspects of this instruction)

Pre-employment Screening Section

[email protected]

Escalation arrangements EL1 or EL2 Pre-employment Screening

Recordkeeping (eg system based facilities to record decisions)

Secure I&PS TRIM repository

Siebel Case Management system

Control Frameworks (please refer to a specific document outlining QA or QC arrangements)

Integrity Framework

Job Vocational Framework Role

All Job Roles


Attachment C – Consultation

1.1. Internal Consultation

The following internal stakeholders have been consulted in the development of this Instruction and Guideline:

Integrity, Security and Assurance Division

Legal Group

all staff through Department-wide consultation.

1.2. External Consultation

The following external stakeholders have been consulted in the development of this Instruction and Guideline:

staff representatives through the National Staff Consultative Forum

Community and Public Sector Union.

Documents

Employment Suitability Screening - Home Affairs