employment suitability screening · file no. 2015/008300-01 . employment suitability screening...

File No. 2015/008300-01

Employment suitability screening Instruction and Guideline

Published date: 1 July 2015

Availability: Internal and external

Purpose: To outline the employment suitability screening framework and requirements within the Department of Immigration and Border Protection

Owner: First Assistant Secretary

Integrity, Security and Assurance Division

Category: Corporate

Sub-category: Governance

Contact: Director, Employment Suitability Integrity and Professional Standards Branch

Type in document title | 1

Contents Contents .......................................................................................................................................... 2

Introduction .................................................................................................................................... 4

Definitions ....................................................................................................................................... 4

Definitions and terms with special meaning .............................................................................. 4

1. Policy statement ..................................................................................................................... 5

2. Graduated implementation .................................................................................................... 5

Direction to undergo employment suitability screening ............................................................ 6

New starters .............................................................................................................................. 6

Individuals who have undergone employment suitability screening through the former Australian Customs and Border Protection Service (ACBPS) .................................................. 6

Existing aftercare provisions to remain in effect ....................................................................... 7

OSA applications submitted prior to 1 June 2015..................................................................... 7

Individuals who have previously received an adverse OSA or ‘fit and proper person’ assessment ............................................................................................................................... 7

3. Validity and re-screening ....................................................................................................... 7

4. Decisions regarding individuals who may be outside the scope of this Instruction and Guideline ................................................................................................................................. 8

5. Waivers and mutual recognition ........................................................................................... 8

Waivers ..................................................................................................................................... 8

Mutual recognition ..................................................................................................................... 8

6. Consequences of a failure to hold/maintain an employment suitability clearance ........ 9

7. Procedural fairness and review rights ................................................................................. 9

Right to reply ............................................................................................................................. 9

Failure to maintain an essential qualification .......................................................................... 10

8. What happens if this Instruction and Guideline is not followed? ................................... 10

9. Related policies .................................................................................................................... 11

Legislation and other references ............................................................................................ 11

10. Consultation .......................................................................................................................... 11

11. Endorsement ......................................................................................................................... 12

12. Approval ................................................................................................................................ 12

Employment Suitability Screening Instruction and Guideline

2 of 12

Summary of main points

This Instruction and Guideline outlines:

• The requirement for Immigration and Border Protection (IBP) workers to hold and maintain an employment suitability clearance.

This Instruction and Guideline applies to:

• Immigration and Border Protection (IBP) workers1 who are:

o ongoing and non-ongoing Australian Public Service (APS) employees in the Department of Immigration and Border Protection (the Department)

o secondees whose services are made available to the Department (including an officer or employee of the APS, a Commonwealth, State or Territory agency or authority, or a foreign government or authority, or a public international organisation)

o contractors and consultants working ‘in-house’ in the Department (i.e. physically located in premises, or on vessels or aircraft, that are owned, managed, controlled, leased, contracted by or operated by the Department) under a contract for services, other than locally engaged staff at overseas posts (‘Internal contractors/consultants’)

o all other contractors and consultants working for the Department (‘External contractors/consultants’) who require non-public access2 to Departmental Assets3, unless the Assistant Secretary, Integrity and Professional Standards (I&PS) Branch, in consultation with the relevant business area, has determined the individual does not fall within the scope of this policy4.

• The Secretary of the Department and the Australian Border Force Commissioner. • Individuals who are not IBP workers but require non-public access to

Departmental Assets, unless the Assistant Secretary, Integrity and Professional Standards (I&PS) Branch, in consultation with the relevant business area, has determined the individual does not fall within the scope of this policy.

1 IBP workers are defined in section 4 of the Australian Border Force Act 2015 and the Secretary Determination on IBP workers. 2 ‘Non-public access’ means ongoing or unrestricted access to Departmental Assets which are not available to members of the public. 3 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. 4 Business areas must undertake a risk assessment where they believe an individual or group of individuals requires access to Departmental information or resources but should not fall within the scope of this policy. Assistant Secretary I&PS Branch will make the final decision in relation to any such assessment.


3 of 12

Introduction The Australian Government’s Protective Security Policy Framework (PSPF) contains the controls used by the Australian Government to protect its people, information and resources. Pursuant to the PSPF, all Australian Government agencies are required to undertake employment suitability screening for all new personnel (and other individuals who are provided access to the agency’s resources), as well as having policies and procedures in place to monitor the ongoing suitability of personnel, including periodic employment re-screening.

In the context of the Department, employment suitability screening is a Department-specific process designed to examine a range of Department-specific risk factors relevant to its personnel and other individuals who are provided with access to the Department’s resources. It is designed 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.

Individuals who require non-public access to Departmental Assets (as defined in this I&G) must undergo employment suitability screening and be granted an Employment Suitability Clearance (ESC). Any such individual may also be selected at any time to undergo re-screening.

This I&G is supported by a number of Associated Documents which further outline the requirements for, and procedural elements of, an ESC.

Definitions Definitions and terms with special meaning Aftercare arrangements are 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 means the individual or individuals within the Department who have been authorised by the Secretary to make decisions in relation to employment suitability matters.

Department means the Department of Immigration and Border Protection (including its operational enforcement arm the Australian Border Force (ABF)).

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) is an essential qualification for engagement and employment with the Department.

Employment suitability screening is a process to determine whether an individual is suitable to have non-public access to Departmental Assets.

Employment suitability clearance assessment criteria means the assessment criteria within the Associated Document titled Employment Suitability Clearance Assessment Criteria.


4 of 12

Employment suitability screening policy means this policy document, as well as any associated policy or process documents.

Employment suitability screening process includes: • any initial employment suitability screening process • any employment suitability re-screening process, and • any employment suitability continuous assurance process undertaken pursuant to

this or a related policy.

Non-public access means ongoing or unrestricted access to Departmental Assets which are not available to members of the public.

1. 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 (Cth) (Public Service Act), and

o subject to the arrangements for the graduated implementation of employment suitability screening, a condition of ongoing employment, and

• in the case of all other individuals who require non-public access to Departmental assets, subject to the arrangements for the graduated implementation of employment suitability screening, 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 Clearance Assessment Criteria set out in the Associated Document Employment Suitability Clearance Assessment Criteria, and

• the process arrangements set out in the Associated Document Employment Suitability Screening Process.

2. Graduated implementation All individuals to whom this policy applies, including all departmental employees, secondees, internal contractors and consultants (other than locally engaged staff at overseas posts) and relevant external contractors, will be required to undergo employment suitability screening and obtain an ESC pursuant to this I&G.

A significant number of people will need to undergo employment suitability screening and this will take some time. To this end, a priority list to support a risk-based graduated implementation of the requirement to obtain and maintain an ESC has been developed. The priority list, based on the priority model and developed in consultation with all Divisions, sets out the order in which


5 of 12

members of particular teams or groups will be directed to undergo employment suitability screening, commencing 1 July 2015.

Direction to undergo employment suitability screening Until an individual’s team or group is directed to commence the employment suitability screening process, individuals will retain their existing non-public access to the Department’s resources.

From 1 July 2015, individuals will be required to commence the employment suitability screening process when they are directed to do so by their Branch or Division head, contract manager or I&PS Branch. This will occur when:

• in accordance with the Department’s risk-based priority model, the Division head has been notified by I&PS Branch that the individual’s team or work group is part of the next priority group required to undergo employment suitability screening, or

• the individual transfers to a new team within the Department, and that team has already undergone the employment suitability screening process.

An individual may also be directed by the decision maker to undergo employment suitability screening as otherwise required.

Where an individual is required to transfer positions and the employment suitability screening team is unable to process their application within a reasonable timeframe, the Assistant Secretary (or equivalent level supervisor) of the individual’s work area may request the decision maker to approve their transfer prior to the completion of the employment suitability screening process.

Decisions will be made on a case-by-case basis. The Assistant Secretary (or equivalent level supervisor) must provide written confirmation that their work area is willing to accept the potential risk associated with the transfer prior to the individual being granted an ESC.

New starters Individuals commencing with the Department between 1 July and 30 September 2015 will be directed to undergo the employment suitability screening process before or within their first two weeks. These individuals will be required to complete and submit an ESC application within two weeks of the date they are directed to undergo the process.

From 1 October 2015, all new employees, secondees, internal and relevant external contractors and consultants will be required to obtain an ESC prior to commencing with the Department.

ESC applications for new starters will be considered as a high priority within the priority list.

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.


6 of 12

• holds an endorsed ‘fit and proper person’ assessment (marine contractor or container examination facility truck driver) 5, issued by the former ACBPS, 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 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.

OSA applications submitted prior to 1 June 2015 For individuals who submitted an OSA application prior to 1 June 2015, but did not receive an endorsed OSA prior to 30 June 2015, their application will be assessed in accordance with the risk-based priority model. These individuals may be required to answer additional questions that form part of the new ESC questionnaire. Where the time between the OSA application being submitted and that individual being directed to undergo the employment suitability screening process makes the information provided in the OSA out of date, the individual may be directed to complete an ESC application.

Individuals who have previously received an adverse OSA or ‘fit and proper person’ assessment Where an individual has previously applied for an OSA or a ‘fit and proper person’ assessment through the former ACBPS and received an adverse assessment6, the individual will be required to submit any information they believe will be relevant to an assessment (against assessment criteria applicable from 1 July 2015) within a set timeframe. This process will be managed by the I&PS Branch.

The decision maker may, at their discretion, require such individuals to be placed on paid miscellaneous leave or an Aftercare Arrangement until the employment suitability screening process has been finalised.

3. 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 is permitted to retain non-public access to the Department’s resources 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.

5 While sharing the same name, this ‘fit and proper person’ assessment reflects a separate assessment process to the ‘fit and proper person’ assessment process conducted by the former ACBPS prior to 1 October 2010. 6 This relates to adverse assessments since 1 October 2010 when the former ACBPS OSA and ‘fit and proper person’ assessments were introduced.


7 of 12

An ESC remains valid until it expires or is revoked pursuant to this I&G. However, once granted, an individual may be selected at any time to undergo re-screening.

4. Decisions regarding individuals who may be outside the scope of this Instruction and Guideline

Where a business area has undertaken a risk assessment and believes that an external7 contractor/ consultant or a non-IBP worker role requires access to Departmental Assets but should not fall within the scope of this policy, the risk assessment must be provided on the form (Employment Suitability Screening – Assessment Against Scope of Policy) and sent to I&PS Branch. The Assistant Secretary 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.

5. 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 will request the decision maker to consider the waiver request.

For individuals who were operating under an OSA waiver granted by the former ACBPS CEO, these waivers ceased to have effect on 30 June 2015.

Mutual recognition Where a clearance applicant has been subject to a similar employment suitability screening process by a current or past employer (for example, agencies within the Attorney-General’s Department 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

employment suitability screening team.

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.

7 i.e. a contractor or consultant performing services for the Department but not physically located in premises that are owned, managed, controlled, leased, contracted by or operated by the Department performing services for in the Department.


8 of 12

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

If an individual is not granted an ESC:

• for existing Departmental employees – this may result in the individual being transferred to another APS agency (with their consent), or having their employment terminated pursuant to section 29 of the Public Service Act

• for 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 (if relevant) having their contract with the Department terminated

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

• for 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

• for prospective non-Department employees – 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 Associated Document Employment Suitability Screening Process.

7. 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 employment suitability screening team or decision maker is:

• required to consider adverse (or potentially adverse) information • considering granting a conditional8 ESC, or

8 A conditional ESC may be granted in circumstances where an Aftercare Arrangement is established to between the individual and the Department to manage and mitigate risks.


9 of 12

• 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 existing 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 Division.

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 consider a claim for unfair dismissal under the Fair Work Act 2009 (Cth).

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.

8. What happens if this Instruction and Guideline is not followed?

Departmental employees are reminded that Instructions and Guidelines have the effect of being directions of the Secretary under section 13 (5) of the Public Service Act 1999. Departmental employees must therefore comply with the requirements of this Instruction and Guideline. A failure, neglect or refusal to adhere to this Instruction and Guideline may give rise to a breach of the Code of Conduct in the Public Service Act 1999, the duties of officials under the Public Governance, Performance and Accountability Act 2013, an offence under the Criminal Code Act 1995, and may result in disciplinary or other appropriate action being taken commensurate with the circumstances and the seriousness of the occurrence.

For contractors and consultants, this Instruction and Guideline must be complied with. Failure to comply may constitute a breach of the contract and/or the Employment Suitability and Security Screening Secretary Direction under the Australian Border Force Act 2015.


10 of 12

9. Related policies • Employment Suitability Screening Process Associated Document • Employment Suitability Clearance Assessment Criteria Associated Document • Security Clearances Instruction and Guideline • Declarable Circumstances Instruction and Guideline • Declarable Associations Instruction and Guideline • Conflicts of Interest Instruction and Guideline

Legislation and other references • Australian Border Force Act 2015 • Public Service Act 1999 (Cth) • Criminal Code Act 1995 (Cth) • Public Governance, Performance and Accountability Act 2013 (Cth) • Integrity Measures Secretary Direction • Protective Security Policy Framework

10. Consultation Internal consultation The following internal stakeholders have been consulted in the development of this Instruction and Guideline:

• Integrity, Security and Assurance Division • Legal Division • all staff through Department-wide consultation.

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.


11 of 12

11. Endorsement

Endorsed on 26 June 2015 Signed

By Kaylene Zakharoff

Assistant Secretary

Integrity and Professional Standards

12. Approval

Approved on 26 June 2015 Signed

By Jan Dorrington

First Assistant Secretary

Integrity, Security and Assurance

Period of Effect 3 years from 1 July 2015 Review Date 1 July 2016


12 of 12