Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Amanda Vanstone)Schedule 1 - Amendment of the Australian Federal Police Act 1979
Item 1
This item inserts, as section 3A of the AFP Act, an overview of the AFP Act.
Item 2
- •
- Items 2 to 23 of this Schedule amend subsection 4(1) Interpretation to repeal or insert definitions into the AFP Act.
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- Item 2 inserts the definition of an adjustment payment which means a payment made in accordance with a determination that is continued in force by item 8 of Part 1 of Schedule 3 to this Act.
Item 3
This item inserts a definition of AFP employee.
Item 4
This item repeals the definition of appoint in the AFP Act.
Item 5
This item provides that Australian workplace agreement has the same meaning as in the WR Act.
Item 6
This item defines blood test to mean a test of a persons blood to determine the amount of alcohol (if any), in the persons blood.
Item 7
This item defines body sample to mean a sample of any human biological fluid, human biological tissue (whether alive or otherwise) or human breath. This follows the definition of sample in the Australian Sports Drug Agency Act 1990 .
Item 8
This item defines breath test tomean a test of a persons breath to determine the amount of alcohol (if any) in the persons blood.
Item 9
This item defines certified agreement to havethe same meaning as in the WR Act.
Item 10
This item inserts the definition of commissioned police officer.
Item 11
This item repeals the definition of commissioned rank.
Item 12
This item inserts the definition of Commissioners Orders.
Item 13
This item repeals the definition of maximum age .
Item 14
This item sets out those persons who are members of the Australian Federal Police. They are the Commissioner of Police, a Deputy Commissioner of Police, and an AFP employee in respect of whom a declaration under section 40B is in force.
Item 15
This item repeals the definition of non-commissioned rank.
Item 16
This item states that overseas means outside Australia and the Territories.
Item 17
This item inserts the definition of prohibited drug. It means a narcotic substance within the meaning of the Customs Act 1901 , or any other drug specified in a determination under section 4A. The definition is broad enough to allow the Commissioner to determine that the abuse of certain drugs such as pharmaceuticals and steroids are prohibited, as well as allowing for the possibility of new drugs being developed and subsequently prohibited.
Item 18
This item inserts the definition of a prohibited drug test . It means a test of a body sample of a person to determine the presence (if any) of a prohibited drug in the sample.
Item 19
This item inserts the definition of senior executive AFP employee.
Item 20
This item repeals the definition of senior executive commissioned police officer .
Item 21
This item provides that serious misconduct has the meaning given by section 40K.
Item 22
This item amends the definition of special member by replacing section 27 with section 40E.
Item 23
This item repeals the definition of staff member .
Item 24
This item inserts a new section 4A into the Act. It provides that the Commissioner may, by written determination, specify drugs for the purposes of the definition of prohibited drug in section 4.
The Commissioner may rely on subsection 33(3) of the Acts Interpretation Act 1901 to amend or revoke determinations made under this section or any other section of the Act.
Item 25
This item repeals and replaces subsection 5(2) of the Act and inserts a new subsection 5(3). Under subsection 5(2), if a law of the Commonwealth or of the ACT is to be read as referring to a member of the AFP of a particular rank, the Commissioner may declare a member of the AFP to be of a particular rank for the purposes of paragraph 5(2)(b). The provisions of a law of the Commonwealth or of the ACT that applies to members of a that rank apply to that member.
The Commissioner may rely on subsection 33(3) of the Acts Interpretation Act 1901 to amend or revoke declarations made under this section or any other section of the Act.
Item 26
This item repeals the heading for Part II of the Act and substitutes a new heading: Part II-Constitution, functions and powers of the Australian Federal Police .
Item 27
This item repeals the heading of Division 1 of Part II and substitutes the new heading Division 1-Constitution, functions and laws conferring powers etc.
Item 28
This section will repeal section 6 and replace it with a new section 6 Constitution of the Australian Federal Police. The AFP consists of the Commissioner of Police and any Deputy Commissioner of Police, AFP employees and special members. While formerly AFP employees were either members or staff members, the Bill removes member as a category of employment. The Commissioner will engage persons as AFP employees and will confer the status of member on certain AFP employees. Special members will fall outside the umbrella term of AFP employees, as will consultants, independent contractors and secondees.
Item 29
This item repeals paragraph 9(1)(a) of the AFP Act and inserts a new paragraph 9(1)(a) to reflect the way in which the Commissioner will declare members to be of particular ranks where it is necessary for ranks to be assigned because of provisions in Commonwealth laws. This provision is for the purpose of the exercise of police powers. A member of the AFP has, in addition to any other powers and duties, powers and duties conferred or imposed by or under a law of the Commonwealth on a constable or a constable of a particular rank where the Commissioner has made a declaration under new subsection 9(2A) that a member is of a particular rank for the purposes of a law of the Commonwealth.
The heading for section 9 is replaced with Laws conferring powers on members.
Item 30
This item repeals paragraph 9(1)(c) and replaces it with a new paragraph that also reflects the way in which the Commissioner will make a written declaration that an AFP member is of a particular rank. In relation to:
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- the laws of the Commonwealth;
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- matters in connection with property of the Commonwealth or of an authority of the Commonwealth;
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- matters arising on or in connection with land or premises owned or occupied by the Commonwealth or an authority of the Commonwealth; or
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- the safeguarding of Commonwealth interests
a member has the powers and duties conferred or imposed in the place in which the member is acting. In addition, if the Commissioner has made a declaration under subsection 9(2B) which declares that the member is of a particular rank (the State law rank) for the purposes of subparagraph (1)(c)(vi), the member has the powers and duties that are conferred or imposed on a constable or officer of police of that particular rank in that place.
There must be a declaration of rank in force for the purposes of Commonwealth laws under subsection 9(2A) and the State law rank to be declared under subsection 9(2B) must be equivalent to the rank already declared for the purposes of Commonwealth laws.
Item 31
This item repeals paragraph 9(2)(b) and replaces it with a paragraph that provides that if a declaration is in force under subsection 9(2B), that a member is of a particular rank for the purposes of conferring powers on that member, then any reference to an officer of police of that rank included a reference to the member.
Item 32
This item inserts subsections 9(2A), 9(2B) and 9(2C). The Commissioner may declare that a person is a particular rank for the purposes of Commonwealth laws (the Commonwealth law rank) under subsection 9(2A), or State law (the State law rank) under subsection 9(2B).
In subsection 9(2B) the Commissioner may, by writing, declare that a member is of a particular rank for the purposes of conferring the State law powers and duties of a constable or an officer of police of a particular rank, upon a member where the Commissioner considers a State law rank to be the equivalent to a Commonwealth law rank already declared under subsection 9(2A)
The new subsection 9(2C) provides that, unless it ceases to be in force sooner, a declaration under subsection 9(2B) will cease to be in force when a declaration under subsection 9(2A) ceases to be in force.
The Commissioner may rely on subsection 33(3) of the Acts Interpretation Act 1901 to amend or revoke declarations made under this section.
Item 33
This item amends section 12 by replacing A member and staff member with The Commissioner, a Deputy Commissioner or an AFP employee.
Item 34
This item amends paragraph 12(a) by replacing a member and staff member with the Commissioner, a Deputy Commissioner or an AFP employee.
Item 35
This item amends paragraph 12E(1)(a) by replacing the term staff member with an AFP employee who is not a member.
Item 36
This item amends paragraph 12E(1)(b) by replacing the term staff members with AFP employees who are not members.
Item 37
This item amends subsection 12E(2) by replacing the words a staff member with an AFP employee.
Item 38
This item repeals Part III of the Act. Old sections 13 and 14 have been moved and enacted in an amended form in Part IV as new section numbers 37 and 38 respectively. Section 15 is re-enacted in Part IV as new section number 69C.
Item 39
This item repeals the heading of Part IV and substitutes Part III - Commissioner, Deputy Commissioners and AFP employees etc.
Part III of the Bill sets out the broad employment regime of the AFP. The Commissioner and Deputy Commissioners are appointed by the Governor-General under section 17 of the Act. This is not changed. However, the detailed employment provisions necessitated by a statutory fixed term appointment regime are largely replaced with a general employment power in section 23 in Division 2 of Part III.
Item 40
This item amends subsection 17(1) replacing a Deputy Commissioner of Police with one or more Deputy Commissioners of Police clarifying that more than one Deputy Commissioner may be appointed.
Item 41
This item repeals sections 17(5) and (6) consistent with the removal of age limitation on statutory office holders.
Item 42
This item amends subsection 18(2) to provide the Commissioner or Deputy Commissioner, where authorised by the Governor-General, with the power to declare a person to be a commissioned police officer.
Item 43
This item also refers to the declaration of a member as a commissioned police officer, amending subsection 19(1) by omitting the phrase make an appointment or promotion under subsection 25(1A)), and substituting make a declaration under subsection 40D(4)).
Item 44
This item repeals subsection 20(2B) which specified that the Commissioner could amend or revoke determinations under subsection 20(2A). It is unnecessary to include such a provision in the AFP Act as the Commissioner may rely on subsection 33(3) of the Acts Interpretation Act 1901 to amend or revoke all determinations. All references in the AFP Act to a specific ability to amend or revoke have therefore been removed so as to create consistency and remove the possibility of confusion where a provision is silent on amendment or revocation.
Item 45
This item repeals Divisions 2 and 3 of Part IV and substitutes the following:
Subdivision A - Engagement of AFP employees etc.
23 Employer powers etc. of the Commissioner
This section provides that the Commissioner will, on behalf of the Commonwealth, have all the rights, duties and powers of an employer. Because, constitutionally, the ultimate employer of any AFP employee is the Crown in right of the Commonwealth, the Commissioner is given the rights, duties and powers of, but will not be described as, the employer.
24 Engagement of AFP employees.
Subsection 24(1) provides that the Commissioner, on behalf of the Commonwealth, may, by writing, engage persons as AFP employees. The Act will not specify different categories of employment. Instead, all AFP employees, except for those engaged overseas under section 69A, will be employed under the same engagement power found in subsection 24(1).
Subsection 24(2) provides that the engagement of AFP employees may be made subject to conditions that must be notified to the employee. While the subsection sets out certain conditions which may be dealt with, subsection 24(3) makes it clear that they are not limited to the matters specified in subsection 24(2).
Paragraph 24(2)(b) allows the Commissioner to include conditions dealing with citizenship. The Commissioner will, however, be able to engage a non-Australian citizen but only where the Commissioner considers it appropriate to do so (subsection 24(4)).
Paragraph 24(2)(d) recognises that the Commissioner may impose conditions relating to security and character clearances. Due to the nature of the AFP and the work it undertakes as a disciplined organisation, security and character clearances are essential to ensure integrity and continuing public confidence.
The imposition of secrecy requirements as a condition under paragraph 24(2)(f) would work in conjunction with section 60A (Secrecy) and Division 4 (Undertakings and Oaths or Affirmations) to maintain a level of confidentiality and integrity expected of a disciplined police force.
25 Senior executive AFP employees.
The Commissioner may, by writing, declare an AFP employee to be a senior executive AFP employee. A person may, as a result of declarations under section 40B and section 25 be a member and a senior executive AFP employee.
The Commissioner may rely on subsection 33(3) of the Acts Interpretation Act 1901 to amend or revoke declarations made under this section. Section 46(2) of that Act allows the Commissioner to exercise the power in section 25 by reference to a class of AFP employees.
This section provides that periods of engagement under section 24 that are immediately contiguous will be taken to amount to continuous employment for the purposes of the Long Service Leave (Commonwealth Employees) Act 1976 and any other law of the Commonwealth.
This section ensures that, should the Commissioner chose to engage a person for a particular period and then re-engage that person immediately after completion of that period, the service will be taken to be continuous from the beginning of the initial period until the end of re-engagement. This section does not create any expectation that the Commissioner will engage a person for particular periods, nor that he or she will be re-engaged after completion of a period of employment.
Subdivision B - Remuneration and other terms and conditions
27 Remuneration and other conditions.
Under subsection 27(1), the Commissioner may, from time to time, determine in writing the terms and conditions of employment and the remuneration of AFP employees. This power to make determinations on employment matters is in addition to, and different from, the power in subsections 40H(2) and 40H(3).
A determination may apply, adopt or incorporate provisions of an award or a certified agreement. However, an award, a certified agreement or an Australian workplace agreement overrides any determination under subsection 27(1) to the extent of any inconsistency.
Subsection 27(4) provides that award in this section has the same meaning as in the WR Act.
The Commissioner may rely on subsection 33(3) of the Acts Interpretation Act 1901 to amend or revoke determinations made under this section.
Subdivision C - Termination of employment
28 Termination of employment by Commissioner
The Commissioner may terminate, by notice in writing, the employment of an AFP employee. The WR Act, other than Division 3 of Part VIA of that Act, (unfair dismissal) does not apply to the termination of employment of AFP employees.
This general power may be exercised on such grounds as termination for non-performance, for loss of confidence on probity grounds, and for fundamental breaches of the employment contract (such as a failure to report for duty at a nominated place).
29 Termination of employment for conviction of a serious criminal offence
An AFP employees employment is automatically terminated if the employee is convicted of an offence against a law of the Commonwealth, State or Territory, that is punishable by imprisonment for at least 12 months. Because the employment is terminated by operation of law and not by an action of the Commonwealth as employer, termination under this section is not subject to the rules in the WR Act. Similarly, administrative review under the ADJR Act will not be available because there will be no decision to terminate made under an enactment.
Reference to a conviction includes the making of an order under section 19B of the Crimes Act 1914 or a corresponding order under a provision of a law in a State or Territory.
The regulations may make provision for the reinstatement of an AFP employee where a conviction to which section 29 applies, is later quashed or otherwise nullified (paragraph 70(h)).
Subdivision D - Resignation and retirement
This section simplifies existing section 37 of the AFP Act by providing for a common period of notice of resignation for all AFP employees. It requires an AFP employee to give a written notice of his or her resignation to the Commissioner. The notice must specify the date on which the resignation is to take effect. The period of notice must be at least 14 days, unless the Commissioner allows a shorter period.
A person may also resign in accordance with the regulations, for the purpose of becoming a candidate at certain elections.
31 Retirement upon reaching certain minimum age
An AFP employee who has reached the minimum retiring age of 55 years, or such age as is prescribed in the regulations, may retire, at any time by notice in writing, to the Commissioner.
32 Retirement on invalidity grounds
Where the Commissioner is satisfied that an AFP employee should be retired because of physical or mental incapacity, the Commissioner may retire the employee by notice in writing and the employee may consent to that retirement.
Subsection 32(3) provides that where an AFP employee is not immediately re-engaged after the completion of an initial period of engagement and the Commissioner certifies in writing that the persons physical or mental incapacity was the only reason why the person was not re-engaged, then the person is taken, for the purpose of the Safety, Rehabilitation and Compensation Act 1988 and the Superannuation Act, to have been retired on the day in which the initial engagement ended. (Superannuation Act is defined in the AFP Act to mean the Superannuation Act 1976 or the Superannuation Act 1990 ).
Subsection 32(4) provides that, despite anything in this section, an AFP employee who is an eligible employee for the purposes of the Superannuation Act 1976 and has not reached his or her maximum retiring age within the meaning in that Act, cannot be retired on the ground of invalidity within the meaning of Part IVA of that Act unless the Commonwealth Superannuation Board of Trustees No. 2 has given a certificate under section 54C of that Act.
Subsection 32(5) provides that, despite anything in this section, an AFP employee who is a member of the superannuation scheme established under the Superannuation Act 1990 and is under 60 years of age, cannot be retired on the grounds of invalidity within the meaning of that Act unless the Commonwealth Superannuation Board of Trustees No. 1 has given a certificate under section 13 of that Act.
33 Time when retirement on invalidity grounds takes effect
Where an AFP employee has consented to being retired under subsection 32(1), then the retirement takes effect on the day specified in the notice under that subsection and must not be on a day earlier than the day on which that notice is given to the employee.
Where an AFP employee has not consented to retirement under subsection 32(1), then a notice given under that subsection must outline that the employee is entitled to apply for review of the Commissioners decision to retire him or her within a particular period. Subject to the outcome of that review, the retirement takes effect on a day specified in the notice and cannot be on a day earlier than the end of period given to apply for review.
The regulations may provide for the review of the decision of the Commissioner to retire an AFP employee under subsection 32(1), where the employee has not consented to the retirement. In addition, the regulations may provide for the period within which, and the manner in which, AFP employees may apply for review, the powers of the person or body conducting such a review, and the Commissioner giving effect to any recommendations made by such a person or body.
Where regulations provide for the person or body conducting a review to give written reasons for any decisions made in relation to the review and give a copy of the reasons to the AFP employee concerned, then despite section 25D of the Acts Interpretation Act 1901 , the regulations may also provide for the exclusion from the statement of reasons any information of a medical or psychiatric nature that the reviewing person or body considers may be prejudicial to the employees physical or mental health or well-being. The regulations may also provide that the employee may nominate a medical practitioner to receive the information.
34 Voluntary retirement for the purposes of the Superannuation Act
This section provides that if an AFP employee resigns from the AFP in accordance with section 30 and the resignation takes effect on or after the day on which he or she reaches 55, but before he or she reaches 60, then he or she is taken to have retired voluntarily for the purposes of the Superannuation Act.
Where an AFP employees employment is terminated under section 28 or section 29 and the termination takes effect on or after the day on which he or she reaches 55, but before he or she reaches 60, then he or she is taken to have retired voluntarily for the purposes of the Superannuation Act.
Where an AFP employee is not immediately re-engaged after the completion of an initial period of engagement and that period ends on or after the day on which he or she reaches 55, but before he or she reaches 60, then he or she is taken to have retired voluntarily for the purposes of the Superannuation Act.
Division 3 - Consultants and independent contractors
35 Commissioner may engage consultants or independent contractors.
This section provides the Commissioner with a specific power to engage persons as consultants or independent contractors to perform services.
Division 4 - Undertakings and oaths or affirmations
36 Undertakings and oaths or affirmations
This section provides that a person appointed as the Commissioner must make such oath or affirmation as is prescribed by the regulations before the commencement of his or her duties.
A Deputy Commissioner must, immediately after appointment, make such oath or affirmation as is prescribed by the regulations and must enter into an undertaking relating to the performance of his or her duties.
A person declared to be a member must, immediately after that declaration, enter into an undertaking in accordance with the regulations relating to the performance of his or her duties. Furthermore, a member must make such oath or affirmation as is prescribed by the regulations.
A person appointed as a special member must, immediately after appointment, enter into an undertaking in accordance with the regulations relating to the performance of his or her duties. Furthermore, a special member must make such oath or affirmation as is prescribed by the regulations.
Item 46
This item repeals Part V and replaces it with:
Part IV - Commissioners command powers etc.
Part IV of the Act contains the Commissioners command powers. The High Court in
Police Service Board v Morris
(1984)
58 ALR 1
and the Federal Court in
Anderson v Sullivan
(1997)
148 ALR 633
have held that in order to maintain the communitys confidence in the integrity of a police force, the police force must accept a curtailment of freedoms which other public sector employees enjoy.
The need for a disciplined force brings with it, therefore, the need for the Commissioner as commander of a disciplined force to have certain command powers. These powers do not derive from the employer / employee relationship. They are , therefore, not subject to the WR Act.
Although most of the Commissioners command powers are not subject to the WR Act, where the exercise of a command power amounts to a decision made under an enactment, they are subject to administrative review.
Division 1 - Administration and control.
37 General administration and control
Section 37 re-enacts section 13 of the AFP Act. The section confers on the Commissioner the general administration, and control of the operations, of the AFP. It also re-enacts the power of the Minister to give written directions to the Commissioner, Ministerial arrangements for common police services and Commissioners reports to the Minister. The power of the Minister to give written directions with respect to the general policy to be pursued in relation to the performance of the functions of the AFP in existing subsections 13(2) to (7) is also retained in section 37.
This section replaces General Orders and General Instructions under existing section 14 with Commissioners Orders. The Commissioner has the power to issue orders with respect to the general administration of and the control of the operations of, the AFP.
The Commissioner may rely on subsection 33(3) of the Acts Interpretation Act 1901 to amend or revoke orders.
39 Compliance with Commissioners Orders
This section provides that an AFP employee or special member must comply with Commissioners Orders.
This requirement was formerly contained in regulation 3 of the Australian Federal Police (Discipline) Regulations. The regulations may make provision for the consequences of contravening this section.
40 Compliance with specific directions, instructions or orders
This section provides that an AFP employee or a special member must not disobey or fail to carry out a lawful direction, instruction or order, given by the Commissioner, a Deputy Commissioner, or an AFP employee or special member under whose control, direction or supervision he or she performs his or her duties.
This requirement was formerly contained in regulation 5 of the Australian Federal Police (Discipline) Regulations. The regulations may make provision for the consequences of contravening this section.
This section, formerly contained in subregulation 5(2) of the AFP (Discipline) Regulations, provides that where an AFP employee or special member is required under section 39 or 40 to give information, produce a document or answer a question, then he or she must do so despite the fact that it may tend to incriminate or expose him or her to a penalty. However, the giving of information, production of a document or answering of a question is only admissible in evidence against the employee or special member in disciplinary proceedings.
Where an employee or special member is required to answer or to give information or to produce a document in relation to a test under section 40M or 40N (testing for alcohol or prohibited drugs) this section does not apply. Section 40Q deals with the admissibility of the information etc.
Division 2 - Conferral of status of member and conferral of commissions
40B AFP employees who are members of the Australian Federal Police
This section deals with the way in which AFP employees become members of the AFP. Members of the AFP exercise police powers. The Commissioner may by writing, declare an AFP employee to be a member of the AFP if he or she is satisfied that the employee meets the requirements specified in a determination under section 40C.
The Commissioner may rely on subsection 33(3) of the Acts Interpretation Act 1901 to amend or revoke declarations made under this section.
40C Determination of competency or qualification requirements
For the purposes of section 40B, the Commissioner may specify competency and/or qualification requirements.
The Commissioner may rely on subsection 33(3) of the Acts Interpretation Act 1901 to amend or revoke determinations made under this section.
40D Commissioned police officers
The Governor-General may declare a member to be a commissioned police officer. Before any declaration, the Commissioner must recommend to the Minister that the member be declared to be a commissioned police officer. The Commissioner may only provide a recommendation to the Minister where he or she is satisfied that the member is competent and qualified to be a commissioned police officer.
The Governor-General may authorise the Commissioner or Deputy Commissioner to, by commission, declare a member to be a commissioned police officer.
The Governor-General, or the Commissioner or a Deputy Commissioner if authorised to declare a member to be a commissioner police officer, may rely on subsection 33(3) of the Acts Interpretation Act 1901 to amend or revoke declarations made under this section.
The Commissioner may appoint a person as a special member of the AFP on terms and conditions determined in writing. A person appointed as a special member will have all the powers and duties conferred or imposed on special members by this Act or another Act or specified in the instrument of appointment.
The Commissioner may rely on subsection 33(3) of the Acts Interpretation Act 1901 to amend or revoke determinations made under this section.
40F Secondment of AFP employees to other police forces etc.
The Commissioner may arrange for an AFP employee to be seconded out of the AFP for a specified period to the Police Force of a State or Territory or of a foreign country, the Australian Public Service or any other body or organisation (public or private). The Commissioner is able under subsection 27(1) to determine the terms and conditions of employment applying to an AFP employee seconded under this section and may terminate the secondment after consultation with the body or organisation involved.
The Minister may give the Commissioner guidelines on the secondment of AFP employees to the Police Force of a foreign country, or to any other body or organisation outside Australia, and the Commissioner must not arrange for an AFP employee to be seconded outside Australia otherwise than in accordance with the guidelines.
40G Effect of secondment on status as AFP employee etc.
Section 40G provides that secondment does not affect the secondees status as an AFP employee or member of the AFP or the application of any provision of the AFP Act to the employee, and, despite secondment, a seconded AFP employee is still subject to the same disciplinary obligations and liabilities as the employee would ordinarily be subject to, but for the secondment.
However, this does not affect any rights, powers or immunities that a seconded AFP employee has by virtue of holding the office or position to which the employee has been seconded. Equally so, it does not affect the extent to which the employee is subject to obligations or liabilities in relation to discipline by virtue of holding the office or position to which the employee has been seconded.
This section does not refer to the terms and conditions of employment applying to AFP employees seconded under section 40F.
Division 5 - Assignment and suspension of duties etc.
Subsection 40H(1) provides that the Commissioner may, from time to time, determine the duties of an AFP employee and the place or places at which those duties are to be performed. This is the Commissioners power to deploy AFP employees to meet the needs of the AFP. It includes deployment to duties within Australia (including within the same city or geographical area), deployment to special teams or task forces to meet operational needs (eg. drug investigation teams in remote areas, or special task forces such as that to police the Olympic Games) and deployment overseas in fulfilling the AFPs national and international role.
Subsection 40H(2) provides that the Commissioner will also be able to determine the terms and conditions applying to an AFP employee while the employee is performing duties outside Australia. This provision is intended to ensure that the Commissioner can supplement the terms and conditions that apply to an AFP employee within Australia. For example, the Commissioner might give further leave or allowances or provide a benefit such as a motor vehicle during the performance of overseas duties.
Subsection 40H(3) gives a power to the Commissioner to determine the accommodation arrangements or allowances that are to apply to, or be paid to, an AFP employee, while the employee is performing duties to meet the special operational needs of the AFP. Deployment of the AFP to the Olympic Games in Sydney or to drug taskforces in remote locations are examples of special operational needs. The Commissioner would assign duties under subsection 40H(1) and make a determination in relation to accommodation and/or allowances under 40H(3).
The Commissioner may rely on subsection 33(3) of the Acts Interpretation Act 1901 to amend or revoke determinations made under this section.
40J Suspension from duties etc.
The regulations may provide for the suspension from duties of AFP employees, with or without remuneration. The regulations may also provide that declarations declaring AFP employees to be members cease to be in force during a specified period.
In order to ensure public confidence in the integrity of the AFP, where the suitability of an AFP employee for continued employment is being reviewed, the Commissioner needs the express power to suspend employees, with or without pay or to suspend the status of a member (which enables the exercise of police powers).
This power is not related solely to suspension for disciplinary or integrity reasons. Provision may be made under this section for the suspension of member status during long periods of leave (such as maternity or parental leave), during secondment, where a member is performing duties that do not require the exercise of police powers or, for example, where the temporary illness of a member impedes the members ability to perform his or her duties. In such cases, it may be considered necessary to remove member powers, whilst retaining the ability for the member to continue employment at the AFP, though not in the former capacity, until such time as the powers may be restored.
Division 6 - Declarations of serious misconduct
40K Termination of employment for serious misconduct
This section largely retains the effect of existing section 26F. It provides a power for the Commissioner to make a declaration that the employment of an AFP employee is terminated under section 28 because of serious misconduct. The Commissioner must form a belief, on reasonable grounds, that the employees conduct or behaviour (or any part of it) amounts to serious misconduct and is having, or is likely to have, a damaging effect on the professional self-respect or morale of some or all of the AFP employees, or the reputation of the AFP with the public or with an Australian or overseas government or law enforcement agency. If the Commissioner terminates the employment of an AFP employee because the Commissioner has such a belief, he or she may make a declaration under this section.
A written declaration must be made within 24 hours of the Commissioners decision to terminate the employment of the AFP employee and that the Commissioner must give a copy of the declaration to the AFP employee. The declaration of serious misconduct is not subject to the operation of the WR Act. However, the Commissioners declaration is subject to administrative law review. If this is successful, the termination is taken to be a general termination under section 28 and is open to challenge under the unfair dismissal provisions of the WR Act.
Subsection 40K(3) provides a definition of serious misconduct for the purposes of section 40K.
The Commissioner may rely on subsection 33(3) of the Acts Interpretation Act 1901 to amend or revoke declarations made under this section.
Division 7 - Submission of financial statements
The Commissioner may give an AFP employee or special member a written direction requiring the person to provide a statement containing any information required by the Commissioner about the financial affairs of the employee or special member during a specified period or periods. The person must provide the statement in the form and manner required by the Commissioner within 2 months after the end of the period to which the statement relates. However, the Commissioner may grant an extension of time for giving the statement in special circumstances.
Financial statements are collected by the Commissioner for probity and discipline reasons. The section may be used to require periodic (eg quarterly) returns of financial interests.
A person is not excused from giving a financial statement on the grounds of self-incrimination. However, any statement is not admissible in evidence in proceedings other than disciplinary proceedings.
The regulations may make provision for the consequences of failing to provide a financial statement in accordance with this section.
40M General testing of AFP employees or special members for alcohol and prohibited drugs.
An authorised person may give an AFP employee or special member who is on duty a written direction requiring him or her to undergo a breath test to determine the amount of alcohol in the blood or to provide a body sample for a prohibited drug test. If a breath test indicates the presence of alcohol, then the AFP employee or special member may choose to provide a sample of his or her blood for a blood test.
Subsection 40M(3) provides that an AFP employee or special member must comply with a direction given to him or her under this section. The regulations may make provision for the consequences of an AFP employee or a special member not complying with a direction given under this section, and for the consequences of the employee or special member testing positive for alcohol or prohibited drugs.
The provision of body samples for testing is based on the sports drug testing regime. It reflects and allows for the changing analytical techniques for the detection of drugs. While urine is the most common form of sample, the definition will also include blood, human breath and biological tissue such as skin and hair.
40N Testing of AFP employees or special members for alcohol and prohibited drugs after certain incidents
Subsection 40N(1) provides that, where a person is seriously injured or killed as a result of an incident involving a motor vehicle or vessel, or as a result of an incident while in police custody, an authorised person may give an AFP employee or special member, directly involved in the incident, a written direction requiring him or her to undergo a breath test, or to provide a body sample of a kind specified in the direction for a prohibited drug test.
Subsection 40N(2) provides that, where an incident occurs in which a person is killed or seriously injured as a result of the discharge of a firearm or the application of physical force by a member or special member while he or she is on duty, an authorised person may give the member or special member a written direction to undergo a breath test or to provide a body sample of a kind specified in the direction for a prohibited drug test.
Directions under subsections 40N(1) and (2) may be given whether or not the employee or member concerned is still on duty, and must be given as soon as practicable after the incident concerned.
Subsection 40N(4) provides that if an AFP employee or special member involved in the incident, attends or is admitted to a hospital because of the incident, then an authorised person may give an AFP employee or special member a written direction requiring the employee or special member to provide a sample of his or her blood, or to provide a body sample of a kind specified in the direction for a prohibited drug.
Subsection 40N(5) provides that an AFP employee or a special member must comply with a direction given to him or her under this section. The regulations may make provision for the consequences of non-compliance or for testing positive for alcohol or prohibited drugs.
This section provides that, for the purposes of sections 40M and 40N relating to drug testing, the regulations may make provision for the authorisation of persons to give directions, and to conduct tests under those sections. In addition, the regulations may make provision for the collection of samples, the conduct of the tests, the devices to be use in the tests, and the accreditation of persons and handling procedures in relation to analysis in connection with the tests. The regulations may also make provision for the giving of the test results in certificates or other documents, the evidentiary effect of certificates or other documents, and the confidentiality of the test results.
40Q Admissibility of test results etc in legal proceedings
A certificate, or other document recording the results of a test conducted under section 40M or 40N, or any other information or document relevant to such a test, is not admissible in evidence against the AFP employee or special member in any proceedings other than disciplinary proceedings, proceedings in relation to a decision of the Commissioner to terminate the employment of the employee or appointment of the special member, proceedings under the Safety, Rehabilitation and Compensation Act 1988 or proceedings in tort against the Commonwealth that are instituted by the employee or special member.
The use of drug and alcohol test results as evidence against an AFP employee or special member in legal proceedings is limited, therefore, to matters relating to discipline and probity. However, the results may be also be used by the Commonwealth as a shield in workers compensation proceedings.
Item 47
This item inserts the definition of changeover day which means the day on which Schedule 1 to the Australian Federal Police Legislation Amendment Act 1999 commences.
Item 48
This item amends section 41 to reflect the change in the terminology from members and staff members to AFP employees.
Item 49
This item amends section 41 (paragraph (a) of the definition of corruption offence ) by replacing such a member or staff member with office as such a person.
Item 50
This item amends section 41 (paragraph (b) of the definition of corruption offence ) by replacing such a member or staff member with such a person.
Item 51
This item inserts a definition of old law member or staff member .
Item 52
This item inserts a new section 41A providing that before the changeover day, a person who was a member or staff member (within the meaning of this Act as in force at that time) was an old law member or staff member at that time.
Item 53
This item repeals paragraph 43(1)(a) and replaces it with a paragraph referring to AFP employees and old law member or staff member.
Item 54
This item amends paragraph 44(a) to replace references to member or staff member with references to old law member or staff member.
Item 55
This section amends subsection 47(2) by replacing a member or staff member of the Australian Federal Police with an AFP employee.
Item 56 to 59
These items amend subsection 47(3) to reflect the new description of members and staff members as AFP employees.
Item 60
This item amends subsection 48(1) to reflect the changed way in which a person becomes a member of the AFP. Under new section 40B the Commissioner may declare an eligible AFP employee to be a member (replacing the current appointment as a member).
Items 61 to 63
These items amend subsection 49(1) to reflect the new description of members and staff members as AFP employees.
Item 64
This item repeals paragraphs 51(1)(b) and (c) and replaces them with a single paragraph that reflects the terminology in the Bill. New paragraph 51(1)(b) refers to the situation, where a person ceases, for any reason, to be an AFP employee on or after the day on which the person is charged with an offence. Under subsection 51(1), the Commissioner shall, where he or she is satisfied that the charge relates to a corruption offence, notify the persons superannuation authority in order to suspend the persons rights and entitlements under the relevant superannuation scheme.
Previously, the term retirement was used in paragraph 51(1)(b) and (c), and throughout the AFP Act. This term referred to voluntary retirement or involuntary termination. Paragraph 51(1)(b) now provides that a person may cease to be employed as an AFP employee by the passing of time, by operation of law or as a result of anything done by the person or the Commissioner. This includes where an employee has his or her employment terminated as a result of a disciplinary penalty or under section 28 or section 29, resigns from the AFP under section 30, retires or is retired from the AFP under section 31 or section 32 or is not re-engaged after an initial period of engagement under section 24.
The heading to section 51 is altered as follows to incorporate the new terminology of the section: Person ceases to be an AFP employee
Item 65
This item amends paragraph 51(3)(a) by replacing when his or her resignation or retirement takes effect with on which he or she ceases to be an AFP employee.
Item 66
This item adds subsection 51(5) which provides that, for the purposes of paragraph 51(1)(b), a person does not cease to be an AFP employee in circumstances of contiguous engagements, provided re-engagement takes place immediately after the end of the previous engagement.
Item 67
This item replaces section 52, which currently provides that an AFP employee who is subject to disciplinary proceedings and who seeks to terminate his or her employment before the proceedings are completed, remains an AFP employee (on suspension) for the duration of those proceedings. It also provides for the employees superannuation status. The section has been re-enacted to reflect the changes in the employment regime. If proceedings are started against a person under the AFP (Discipline) Regulations and the person would, but for this section, cease to be an AFP employee on a day (the cessation day ) that is on or after the day on which the proceedings started (whether because the period of the persons engagement ends by operation of law or because of anything done by the person or Commissioner) - then the person does not cease to be an AFP employee on the cessation day and is taken to have been suspended without pay on the cessation day.
The person must not be required or permitted to pay employee contributions under his or her superannuation scheme on or after the cessation day.
If the proceedings are determined in favour of the person, or are discontinued, or the person is found guilty of the relevant disciplinary offence but is not dismissed from the AFP, then the person is taken to have ceased to be an AFP employee on the cessation day (the day on which the employment would have ceased).
If the person is entitled to interest on contributions made under a superannuation scheme, then the person is taken to have ceased to be an AFP employee, for the purposes of that entitlement only, on the day in which the relevant proceedings are determined in favour of the person, or are discontinued, or the person is found guilty but not dismissed from the AFP.
Item 68
This item repeals section 60.
Item 69
This item replaces subsection 60A(1). The new subsection states that section 60A now applies to the Commissioner, a Deputy Commissioner, an AFP employee, a special member, a person engaged under section 35, or a person performing functions under an arrangement under section 69D.
Item 70
This item amends subsection 61(1) in relation to awards for bravery, replacing the references to member, staff member and special member with a Deputy Commissioner, an AFP employee or a special member.
Items 71 and 72
These items amend subsection 62(1) replacing the reference to member and staff member with engagement as an employee under subsection 24(1) and expressing the penalty as a term of 12 months imprisonment. Section 4B of the Crimes Act 1914 provides a formula for converting a term of imprisonment into a pecuniary penalty.
Item 73
This item repeals subsection 62(2).
Items 74 and 75
These items amend section 63 by inserting a reference to special member after member whenever occurring in the section and expressing the penalty as a term of 12 months imprisonment. Section 4B of the Crimes Act 1914 provides a formula for converting a term of imprisonment into a pecuniary penalty.
Items 76 and 77
These items amend subsection 64 by including a reference to special member after that of member.
Item 78
This item amends subsection 64A(1) by omitting reference to rank. While section 64A currently requires only members of a rank specified in the regulations to wear identification numbers when in uniform, the new subsection will require all members in uniform to wear their identification numbers.
The heading in section 64A will be amended by omitting of certain ranks and replacing it with in uniform.
Item 79
This item amends subsection 64A(1) by expressing the penalty in terms of penalty units. A penalty unit is defined by a formula in section 4A of the Crimes Act 1914 .
Item 80
This item amends subsection 64AA(1) to reflect the change in the terminology describing AFP members.
The heading to section 64AA will be amended by omitting members and staff members and replacing it with AFP employees who are members.
Item 81
This item repeals subsection 64AA(2)
Item 82
This item amends paragraph 64B(5)(a) by omitting the phrase , under whatever authority he or she was appointed as such,.
Item 83
This item amends subsection 66(1) to reflect the new description of members and staff members as AFP employees. The section now applies to the Commissioner, a Deputy Commissioner, an AFP employee, or a special member.
Item 84
This item amends subsection 66(2) to reflect the new description of members and staff members as AFP employees. The section now applies to the Commissioner, a Deputy Commissioner, an AFP employee, or a special member.
Item 85
This item repeals section 68 and substitutes sections 68, 69, 69A, 69B, 69C and 69D.
68 Proof of appointment, status of member etc.
The provisions of the existing section 68 have been re-enacted in a form which incorporates the new provisions and terminology. Section 68(1) provides that the Commissioner may, by writing, certify that a person has been appointed as a Deputy Commissioner, that the person has entered into the undertaking mentioned in subsection 36(2); that the person made and subscribed the oath or affirmation; and that on the date on which the certificate is signed, the person is a Deputy Commissioner has been such continuously since he or she was so appointed.
Subsection (2) provides that the Commissioner may, by writing, certify that a person has been declared a member under section 40B. In addition, the Commissioner may certify that the person has entered into an undertaking mentioned in subsection 36(3); that the person made and subscribed the oath or affirmation for the purposes of subsection 36(3); that the person is, on the date on which the certificate is signed, a member and has been such continuously since his or her declaration as a member under section 40B; and that a declaration in relation to rank is or was in force on a specified date or during a specified period under subsection 5(3) or 9(2A) or (2B).
Subsection (3) provides that the Commissioner may, by writing, certify that a person has been declared a special member under section 40E. In addition, the Commissioner may certify that the person has entered into the undertaking mentioned in subsection 36(4); that the person made and subscribed the oath or affirmation for the purposes of subsection 36(4); and that he or she is, on the date on which the certificate is signed, a special member and has been such continuously since he or she was appointed.
Subsection (4) provides that the Commissioner may, by writing, certify that a specified person is or was not a member or special member, or was or was not, on a specified day, or during a specified period, a member or special member.
Subsection (5) provides that a document purporting to be a certificate given under this section is to be presumed to have been duly given and be conclusive evidence of the matters stated therein, unless the contrary is established.
69 Prohibition of patronage and favouritism
This section provides that the Commissioner, or delegate of the Commissioner, must exercise powers under the Act in relation to the engagement of AFP employees or otherwise in relation to AFP employees, without patronage or favouritism.
69A Persons engaged overseas as employees
This section provides that the Commissioner, on behalf of the Commonwealth, may engage persons overseas to perform duties overseas as employees. The Commissioner has the rights, duties and powers of an employer in respect of those persons. Employees engaged under this power will not be AFP employees engaged under section 24.
69B Limited operation of Workplace Relations Act
Subsection 69B(1) provides that the WR Act (other than Parts VIIIA or XA) does not apply to a matter covered by any of Divisions 2 to 8 of Part IV or to any action taken under those Divisions, to the discipline of AFP employees, to any entitlement of AFP employees to adjustment payments or to any other matter prescribed by the regulations. Part VIIIA deals with strike pay. Part XA deals with freedom of association
Subsection 69B(2) provides that the WR Act (other than the unfair dismissal provisions) does not apply in relation to the termination of AFP employees.
Subsection 69B places beyond doubt that the exclusion of certain Divisions from the operation of the WR Act does not imply that the WR Act applies to any matter covered in the AFP Act that is not covered by the exclusion where the WR Act would not otherwise apply.
This section provides that the Commissioner may, in writing, delegate to a Deputy Commissioner, or to an AFP employee, all or any of the Commissioners powers, functions or duties under this Act.
The Commissioner may rely on subsection 33(3) of the Acts Interpretation Act 1901 to amend or revoke delegations made under this section.
69D Secondment of persons to assist the Australian Federal Police
This section provides that the Commissioner may, by written agreement with a body or organisation, second to assist the AFP, persons with suitable qualifications and experience employed by that body or organisation.
The terms and conditions (including remuneration and allowances) applicable to the secondee will be determined in the agreement with the Commissioner. While the seconded person is not an AFP employee, the Commissioner may include in such an agreement that the secondee is subject to the Commissioners powers under the AFP Act and the AFP disciplinary regime.
Items 86 and 87
These items amend paragraph 70(a) by including a reference to special member after that of member whenever occurring in the paragraph and by adding the word and at the end of the paragraph.
Items 88 and 89
These items amend paragraph 70(aa) by including a reference to special member after that of member and by adding the word and at the end of the paragraph.
Item 90 and 91
These items amend paragraph 70(b) by omitting the dollar value of $500 and replacing it with 5 penalty units and by adding the word and at the end of the paragraph.
Item 92
This item amends section 70 to provide for additional matters upon which the Governor-General may make regulations under the Act. In addition to the matters currently in section 70, the Governor-General may make regulations:
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- requiring AFP employees who are not members to make and subscribe oaths or affirmations of secrecy in relation to matters coming to their knowledge in the course of their employment as employees;
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- providing for the making of deductions from the salary of the Commissioner, a Deputy Commissioner or an AFP employee to satisfy a judgement debt;
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- enabling an AFP employee to resign from the AFP for the purpose of becoming a candidate at an election for the parliament of the Commonwealth or a State or the Legislative Assembly of the ACT or of the NT;
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- providing for the re-instatement of persons as AFP employees (this could arise where there has been a resignation, a failure to get elected at an election, or termination under section 29 where the conviction is consequently quashed);
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- providing for disciplinary offences and their penalties including contraventions of provisions of the Act or any other matters.
Item 93
This item repeals sections 72 and 73.
Item 94
This item repeals section 76.
Item 95
This item amends section 77 by inserting the phrase of this Act, as in force on the commencing date, after section 72.
Item 96
This item repeals sections 78 and 79.