Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Amanda Vanstone)Schedule 3 - Application and transitional provisions
Part 1 - Application and transitional provisions relating to the amendments made by Schedule 1
Part 1 of Schedule 3 sets out the transitional provisions necessary as a result of the amendments to the AFP Act made by Schedule 1. This item sets out definitions of terms used in Part 1 of Schedule 3.
Commencing time means the time when Part 1 of Schedule 3 commences.
The former Act means the AFP Act in force before the commencing time. The later Act means the AFP Act at and after the commencing time.
The following terms are defined to mean persons who held appointments or positions etc. under provisions of the AFP Act before the commencing time: former commissioned police officer, former consultant, former non-commissioned police officer, former senior executive commissioned police officer, former senior executive officer, former special member, former staff member and former temporary employee.
Pre-commencement misconduct means conduct of a former commissioned police officer, former non-commissioned police officer or former staff member that was serious misconduct for the purposes of section 26F of the former Act.
A statutory instrument includes a law of the Commonwealth (other than the AFP Act), a law of a Territory, a certified agreement or an instrument having effect under a law of the Commonwealth (other than the AFP Act) or a law of a Territory.
Conversion of former members and staff members etc.
With the abandonment of statutory fixed term appointments, former members and staff members will now be employed as AFP employees. Former special members, temporary employees and consultants will continue to be employed for the unexpired part of their period of appointment, employment or engagement.
At commencement time, former commissioned police officers will be taken to be engaged under section 24 as AFP employees, to have been declared to be members under section 40B and to be declared to be commissioned police officers under section 40D.
At commencement time, former non-commissioned police officers will be taken to be engaged under section 24 as AFP employees and to be declared to be members under section 40B.
At commencement time, former staff members will be taken to be engaged under section 24 as AFP employees.
At commencement time, former special members will be taken to be appointed as special members under section 40E for the unexpired part of the term of appointment under the former Act with the same terms and conditions and powers and duties conferred or imposed on members as specified in their instruments of appointment.
At commencement time, former temporary employees will be taken to be engaged under section 24 for a period equal to the unexpired part of their period of employment. In addition, they will be taken to be the subjects of a determination under subsection 27(1) of the later Act specifying the same terms and conditions as determined under subsection 39A(2) of the former Act.
At commencement time, former consultants will be taken to be engaged as consultants under section 35 for a period equal to the unexpired part of their former engagement, with the same terms and conditions as were determined in relation to them under subsection 39B(2) of the former Act.
Classification as senior executive AFP employee
This item provides that at commencement time, a former senior executive commissioned police officer or a former senior executive officer is taken to be declared to be a senior executive AFP employee under section 25 of the later Act.
Appointment of Commissioner or Deputy Commissioner not affected
This item provides that, in order to avoid doubt, amendments made by Schedule 1 to section 17 of the AFP Act, do not affect the validity of an appointment made under that section before the commencement of the amendments.
In relation to persons seconded from the AFP, this item provides for the continuation of secondments, as if they had been entered into under section 40F of the later Act, under the same terms as arranged under section 33 of the former Act. A determination under subsection 27(1) of the later Act is taken to be made specifying the same terms and conditions as were specified in the former 33(5) determination.
In relation to persons seconded into the AFP an agreement made under section 39C of the former Act, will continue to be in force after the commencement time, as if it had been made under section 69D of the later Act.
Determinations under subsection 30(1) of the former Act
This item provides that determinations in relation to the remuneration and terms and conditions made under subsection 30(1) of the former Act, will be continued as determinations under subsection 27(1) of the later Act. A continued determination will cease to be in force one year after the commencing time, unless it is revoked sooner.
Continuation of awards or certified agreements
This item provides that an award or a certified agreement that is in force immediately before commencing time in relation to members and staff members, does not cease to be in force at and after commencing time because of amendments made by Schedule 1 to this Act. It will apply to AFP employees because on commencement, members and staff members under the former Act become AFP employees.
Determinations under subsection 30(2) of the former Act
This item deals with a determination about an adjustment payment. Under the former Act an adjustment payment would be made to a person in recognition of the fact that the persons appointment was for a fixed term. With the removal of statutory fixed term appointments, the adjustment payment scheme (AFPAS) will not continue. However, a determination under subsection 30(2) continues in force after commencing time and the Commissioner will have the power to amend, vary or revoke such a determination. Where the Commissioner exercises that power, then this will not affect any entitlement under the determination that arose before the amendment, variation or revocation.
Any service of a fixed term appointment before the commencing time will, where that appointment did not end before commencing time, count towards an AFPAS payment after commencing time, despite the transition to employment as AFP employees.
This item provides that the Commissioner may, under section 28 of the later Act, terminate the employment of an AFP employee for misconduct that took place before commencing time, as if the misconduct took place after commencing time.
Certificates under subsection 12A(4) of the Australian Federal Police Act 1979
This item provides that subsection 12A(4) of the AFP Act as in force at and after the commencing time, applies to a certificate given under that subsection at any time before commencing time in the same way as it does to a certificate given under that subsection at or after commencing time.
Repeal of subsection 20(2B) of the Australian Federal Police Act 1979 does not limit subsection 33(3) of the Acts Interpretation Act 1901
This item provides that the repeal of subsection 20(2B) does not affect the operation of subsection 33(3) of the Acts Interpretation Act 1901 in relation to a determination under subsection 20(2A).
Repeal of section 39E of the Australian Federal Police Act 1979 has no effect on the Superannuation Acts
This item provides that for the purpose of superannuation entitlements, service before and after commencement time will not be affected by the repeal of section 39E of the former Act.
AFP employees eligibility for superannuation entitlements and their rights and obligations will be determined under the Superannuation Act.
Continuation of section 49 of the Australian Federal Police Act 1979
This item provides that section 49 as in force immediately before the commencing time continues to apply at and after the commencing time to any person found guilty of a disciplinary offence.
Continuation of section 51 of the Australian Federal Police Act 1979
This item provides that amendments to section 51 made by Schedule 1, apply to persons charged with offences, whether before or after the commencing time, but do not apply where a resignation or retirement from the AFP took effect before the commencing time.
Continuation of section 52 of the Australian Federal Police Act 1979
This item provides that amendments to section 52 apply to proceedings started against a person, whether before or after the commencing time, but does not apply where the persons resignation or retirement from the AFP would, but for subsection 52(1), have taken effect before the commencing time.
Continuation of secrecy obligations
This item provides that a person who, immediately before commencing time, was a person to whom section 60A of the former Act applied, is taken to still be bound by that section at and after commencing time.
Certificates under section 68 of the Australian Federal Police Act 1979
This item provides that section 68 of the AFP Act, as in force at and after commencing time, applies in the same manner to a certificate given under that section before the commencing time.
References in statutory instruments to staff members
This item provides that, unless the contrary intention appears, references to a staff member of the AFP in any statutory instrument are taken to be references to an AFP employee who is not a member.
This item provides that the Governor-General may make regulations prescribing matters that are necessary or convenient to be prescribed in order to carry out or give effect to this Part. In addition, regulations may be made in relation to:
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- the continuation of processes relating to appointment, re-instatement, transfer, promotion, advancement, resignation, retirement or discipline under the former Act and their effects under the later Act.
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- the continuation under the later Act of suspensions that were in force under the former Act,
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- the review of decisions made under the former Act before the commencing time; the effect under the later Act, of those reviews; the powers available to a person or body in conducting those reviews;
Regulations under subitem (3) prevail over the former Act and the later Act to the extent of any inconsistency.
Regulations made under this item, within one year after the commencing time, may commence on a day earlier than the day on which they are made, but not earlier than the commencement time.
Part 2 - Application and transitional provisions relating to the amendments made by Schedule 2
Commencing time means the time when this Part commences.
Amendment of the Administrative Decisions (Judicial Review) Act 1977
This item provides that the amendment to the Administrative Decisions (Judicial Review) Act 1977 made by Schedule 2 applies to decisions under the AFP Act made at or after the commencing time.
Amendments to the Complaints (Australian Federal Police) Act 1981
This item provides that the amendments to the Complaints (Australian Federal Police) Act 1981 made by Schedule 2 apply to action taken by an AFP appointee (within the meaning of the Complaints (Australian Federal Police) Actas in force at and after the commencing time) at or after commencing time.
Amendment of the Crimes Act 1914
This item provides that section 15U of the Crimes Act applies to a certificate given by an Assistant Commissioner under section 15M of that Act before the commencing time, in the same way as it does to a certificate given under section 15M after the commencing time by a senior executive AFP employee.
Amendment of the Disability Discrimination Act 1992
This item provides that the amendment of the Disability Discrimination Act 1992 made by Schedule 2 applies to acts done at or after the commencing time in relation to the Commissioner, a Deputy Commissioner, an AFP employee or a special member, of the AFP or persons seeking to become the Commissioner, a Deputy Commissioner, an AFP employee or a special member, of the AFP
Amendment of the Evidence Act 1995
This item ensures that provisions of the Evidence Act 1995 as in force at and after the commencing time apply to persons who are described in a different way following the commencing time. In section 33 (evidence given by police officers) reference to a police officer includes a reference to a person who was a member or special member of the AFP before the commencing time.
In section 86 (exclusion of records of oral questioning) reference to an investigating official includes a reference to a person who was a member or a special member of the AFP before the commencing time.
In section 115 (exclusion of evidence of identification of identification by pictures) reference to a police officer includes a reference to a member or special member of the AFP before the commencing time.
In section 171 (proof of certain matters) reference to an authorised person includes a reference to a member of the AFP at or above the rank of sergeant; or a staff member whose salary was at least equal to that of a sergeant in the AFP, at any time before the commencing time.
Section 180 which relates to fingerprint affidavits applies to an affidavit made under that section made before the commencing time in the same way as it does to an affidavit made under that section at or after the commencing time.
Amendment of the Long Service Leave (Commonwealth Employees) Act 1976
This item provides that the amendment of section 10 of the Long Service Leave (Commonwealth Employees) Act 1976 made by Schedule 2 does not affect the operation of that Act, at or after commencing time, in relation to the deeming of a member or staff member at any time before the commencing time, to be employed in Government Service.
Amendment to the Migration Act 1958
The Migration Act 1958 applies to a certificate given under section 147 of that Act before the commencing time by a member of the AFP of a rank not lower than Superintendent in the same way as a certificate given after the commencing time by a commissioned police officer.
Amendment of the Occupational Health and Safety (Commonwealth Employment) Act 1991
The amendment to the Occupational Health and Safety (Commonwealth Employment) Act 1991 made by Schedule 2 applies to things done at or after the commencing time by or in relation to the Commissioner, a Deputy Commissioner or an AFP employee.
Amendment of the Privacy Act 1988
This item provides that the Privacy Act 1988 applies to things mentioned in sections 8, 9, 10, or 11 of that Act in relation to members, staff members or special members before the commencing time, in the same way as it applies to things at or after the commencing time.
Amendments to the Privacy Act made by Schedule 2 apply to obligations of confidence that arise at or after the commencing time in relation to the Commissioner, a Deputy Commissioner, an AFP employee, or a special member of the AFP.
Amendment of the Radiocommunications Act 1992
This item provides that the Radiocommunications Act 1992 as in force after the commencing time applies to a certificate issued under section 305 of that Act at any time before the commencing time by a member or special member in the same way as it does to a certificate issued at or after the commencing time.
Amendment of the Safety, Rehabilitation and Compensation Act 1988
This item provides that the amendment of the Safety, Rehabilitation and Compensation Act 1988 applies in relation to any injury suffered, or an accident had at or after the commencing time by the Commissioner, a Deputy Commissioner or an AFP employee.
Amendment of the Telecommunications (Interception) Act 1979
This item provides that the Telecommunications (Interception) Act 1979 , as in force at and after the commencing time, applies to a certificate issued under section 61 or a document under section 61A before the commencing time, in the same way as it does to a certificate or document issued under those sections after the commencing time by a senior executive AFP employee.
Former members or staff members become permanent employees for the purposes of the Superannuation Acts at the commencing time
If subitem 2(1), 2 or (3) of Part 1 applies to the engagement of a person who was covered by section 39E(1) or (2) of the AFP Act before the commencing time, then for the purposes of the Superannuation Act 1976 the person is taken to be a permanent AFP employee during that engagement.
If subitem 2(1), 2 or (3) of Part 1 applies to the engagement of a person who was covered by section 39E(3) of the AFP Act before the commencing time, then for the purposes of the Superannuation Act 1990 the person is taken to be a permanent AFP employee during that engagement.
Part 3 - Transitional provisions relating to the amendments made by Schedules 1 and 2
Warrants or writs etc. may continue to be executed
This item provides that if, immediately before the commencing time, any writ, warrant, order, permission or other instrument (the authority) issued under a law of the Commonwealth, a State or a Territory, could be executed by a person who was at that time a member, staff member or special member, then the authority continues to be able to be executed at and after commencing time by the Commissioner, a Deputy Commissioner, an AFP employee or a special member of the AFP.
Regulations dealing with matters of a transitional or saving nature
The regulations may make provision, that is not inconsistent with any provision in Part 1 or 2, of a transitional or saving nature in relation to the amendments made by Schedule 1 or 2. Regulations made under this item within one year after the commencement of this item may commence on a day earlier than the day on which they are made, but not earlier than the commencement of this item.
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