Bills Digest 97 1995-96 Australian Federal Police Amendment Bill 1996


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WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest was available from 17 June 1996

CONTENTS

Passage History

Date Introduced: 29 May 1996
House: Senate
Portfolio: Attorney-General
Commencement: This Bill does not contain a commencement clause. However, by virtue of subsection 5(1B) of the Acts Interpretation Act 1901 it will be deemed to come into operation on the day on which it receives Royal Assent.

Purpose

The purpose of this Bill is to allow the Police Commissioner to sack a police officer or staff member in cases of corruption or other serious misconduct.

Background

This Bill is identical to a Bill introduced by the previous Government, namely, the Australian Federal Police Amendment Bill 1995. That Bill lapsed with the dissolution of Parliament for the 1996 election.

The 1994-95 AFP Annual Report(1) , at Chapter 7, stated that the Internal Security and Audit Division's (ISAD) primary role was to combat alleged corruption in the AFP. Eighty seven references, including 26 carried over from the previous year were investigated. Two of the references resulted in the laying of serious criminal charges against two AFP investigators. From a statistical analysis of ISAD since it was established in 1990, it was reported that ISAD had focused on improper access to and/or unauthorised disclosure of information.

The Internal Investigation Division (IID) of the AFP is also responsible for the investigation of complaints and allegations against AFP members. During 1994-95, IID recorded a total of 900 complaints by 596 complainants and in the AFP's community policing role in the ACT, 434 complaints were received(2) .

The AFP Annual Report, Table 6.4(3) stated that in 1994-95, IID substantiated 4 cases of make false or misleading entry in official book, document or record, 3 cases of make oral or written statement that is false or misleading, 1 case of failure to account for money received, 5 cases of improper use of property, 2 cases of communicate information, 3 cases of disgraceful or improper conduct, 2 cases of act in a disorderly manner unbecoming a member of the AFP, 1 case of bring discredit to the reputation of the AFP and 1 case of involvement in any criminal activity.

The Annual Report at Table 6.2(4) (see Attachment) provides results of investigations completed and reviewed by the Ombudsman in 1994-95.

To put the above figures in context, the AFP Annual Report states that as at 30 June 1995 the AFP had a workforce of 3008 which consisted of 2284 police members and 724 staff members, who were all employed under the provisions of the Australian Federal Police Act 1979.(5)

At its hearings in 1995, the NSW Police Royal Commission has uncovered widespread and systematic corruption in the NSW police force. The Australian Federal Police has also been implicated. The Canberra Times reported on 9 October 1995 that '(a)t least 10 Australian Federal Police officers, implicated in the NSW Woods Royal commission, have resigned....They have admitted to corruption and resigned' The Sydney Morning Herald reported on 14 October 1995 that '(i)n the past few weeks, six serving AFP officers, including senior officers up to the rank of superintendent have been forced to resign after "rolling over" to the royal commission and admitting to corruption. A further eight former officers have been adversely named or have rolled to the commission. The commission has a charter to investigate corruption in the NSW Police Service but during its investigations into the Joint Drug Task Force, staffed by Federal and State officers, it has uncovered serious corruption by AFP officers.' On 9 October 1995 The Canberra Times reported that the AFP would not confirm the full number of police who had resigned saying the suppression of names prevented any public comment on the issue.'

On 19 October 1995 the Sydney Morning Herald reported that the Federal Police Commissioner, Mr Mick Palmer 'had requested the powers for instant dismissal amid concerns that corrupt officers could remain on the AFP payroll for up to three years while they sought appeals through the merit review procedures.'

The Minister for Justice said that he was 'extremely disappointed that some former AFP officers have behaved corruptly. As the responsible Minister I would hope that the force is as clean as possible. But no police minister should ever claim there is no corruption within his or her force. To do so would be naive and I am not that....The challenge for government - and police management - is to encourage a culture which is hostile to corruption.' The Minister also noted that the AFP officers who have admitted to corruption at the royal commission have either left the force, resigned since admitting their corruption, or been stood aside. 'The Federal Government and the AFP are committed to providing complete assistance to the Royal Commission....Mr Palmer has advised me that once the Royal Commission has taken evidence from named AFP members and finalised its inquiries into those matters. the AFP will act appropriately.(6) ' The Minister for Justice also said that the AFP Association supported the move for legislation to entrench the Commissioner's power to dismiss police officers who are under serious suspicion of corruption or whose behaviour seriously deviates from accepted standards.

Main Provisions

All references to the Principal Act are to the Australian Federal Police Act 1979.

Section 18 of the Principal Act deals with the Ministers power to appoint an acting Commissioner or an acting Deputy Commissioner if the position is vacant or is expected to be vacant. Subsection 2 of section 18 gives an acting Commissioner or an acting Deputy Commissioner all the powers, duties and functions of the Commissioner or the Deputy Commissioner. The amendment (item 1 of Schedule 1) restricts the powers of an acting Commissioner or an acting Deputy Commissioners to appoint or promote commissioned police officers under section 25(1A).

Section 19 of the Principal Act provides that when a Commissioner or Deputy Commissioner is absent from duty or overseas, or unable to work, the next most senior member who is available may exercise all the powers and perform all the functions and duties of the Commissioner or the Deputy Commissioner. Item 2 of Schedule 1 restricts the next most senior member from exercising the power to appoint or promote under section 25(1A).

Items 3 and 4 of Schedule 1 concern the delegation of the power of appointment from the Governor-General to the Commissioner or a Deputy Commissioner. The Governor-General's ability to delegate the power to appoint or promote in section 25 of the Principal Act (which refers to commissioned officers) is taken away by item 3. In item 4, the Governor General can authorise the Commissioner or a Deputy Commissioner to appoint or promote commissioned officers and other specified ranks. The Commissioner and the Deputy Commissioner's power of appointment and promotion has thus been expanded slightly.

Item 5 of Schedule 1 repeals subsection 26E(3) of the Principal Act. According to the Explanatory Memorandum,(7) the purpose of item 5 is to 'reflect a concern that subsection 26E(3) of the AFP Act imposes unnecessary limits on the Commissioner's authority over individual appointments thereby affecting the Commissioner's ability to fulfil his or her statutory responsibilities for the AFP's operational efficiency and internal administration.'

Section 26E of the Principal Act regulates the termination of appointments. Subsection 26E(2) and (3) provide as follows:

(2) Subject to this Act and the regulations, an appointment under section 25, 26 or 26B ends:

(a) when the term of the appointment ends; or

(b) if, before the end of the term, the Commissioner determines, in writing, that the appointment ends on a day specified in the determination, being a day earlier than the day on which the term ends, but not earlier than the day on which the determination was made - on the specified day.

(3) The Commissioner must not make a determination under subsection (2) merely because:

(a) of an act or omission of the member or staff member concerned in respect of which a charge has been or could be laid against the member or staff member under the Australian Federal Police (Discipline) Regulation; or

(b) a court has convicted the member or staff member of a criminal offence within the meaning of those Regulations, or has found the member or staff member guilty of such an offence without recording a conviction.

The Explanatory Memorandum to the Bill(8) states that the effect of section 26E(2) was that before a Commissioner could terminate the appointment of a person, charged or convicted of corruption or serious criminal or disciplinary offences, it was necessary for the Commissioner to institute separate disciplinary proceedings.

With the repeal of subsection 26E(3), the Commissioner will be able to end the appointment of a member or staff member by a determination in writing under subsection 26E(2)(b). If a person's appointment is terminated under section 26E(2)(b), the member or staff member is taken to be retired under subsection 26E(4).

A person whose appointment is terminated under subsection 26E(2)(b) can challenge the determination under the Industrial Relations Act 1988, the Administrative Decisions (Judicial review) Act 1977 and at common law in the Federal Court.

The purpose of item 6 of Schedule 1, according to the Explanatory Memorandum to the Bill(9), is 'to allow the Commissioner to exercise a broad power to terminate an appointment in cases of corruption, a serious abuse of power or a serious dereliction of duty where continued retention of the individual would be harmful to the integrity, reputation and status of the AFP.'

If a person is retired under subsection 26E(2)(b) because of his or her conduct or behaviour, item 6 of Schedule 1 allows the Commissioner to make a declaration that the Commissioner believes on reasonable grounds that the conduct or behaviour amounts to serious misconduct and is, or is likely to have a damaging effect on the professional self-respect or morale of members or staff, or the reputation of the AFP. The declaration must be made in writing and within 24 hours after a determination is made under subsection 26E(2)(b).

By proposed subsection 26F(4), the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Industrial Relations Act 1988 are excluded when the Commissioner makes a declaration under proposed subsection 26E(2)(b). Part VIA of the Industrial Relations Act 1988 relates to the termination of employment and includes the requirements for lawful termination of employment and remedies in respect of unlawful termination. It will still be possible for a person whose employment is terminated under subsection 26(E)(2)(b) and subsection 26F to seek review of that decision under the Administrative Decisions (Judicial Review) Act 1977.

The proposed subsection 26F(5) defines serious misconduct as including 'corruption, a serious abuse of power, or a serious dereliction of duty and any other seriously reprehensible act or behaviour by a person, whether acting or purporting to act in the course of his or her duties as a member or staff member or not.'

Remarks

Item 6 of Schedule 1 (proposed section 26F) raises a number of issues, including:

  • whether removing the option for a dismissed person to bring an action for wrongful dismissal under the Industrial Relation Act 1988 is appropriate; and
  • whether whistleblowers would be disadvantaged.

Endnotes

(1) Australian Federal Police, Annual Report 1994-95, Australian Government Publishing Service, Canberra, page 54.

(2) ibid, page 55.

(3) ibid, page 98.

(4) ibid, page 96.

(5) ibid, page 92.

(6) Speech by Duncan Kerr, Federal Justice Minister, Opening of New Federal Police Office on the Gold Coast, 19 October 1995.

(7) Explanatory Memorandum, page 2.

(8) ibid, page 3.

(9) ibid, page 3.

Attachment
Substantiated Unsubstantiated Incapable of determination Minor Complaint reconciled -s.6A Conciliated - s.6B Ombudsman exercised discretion not to investigate /further investigate Withdrawn by complainant
Incivility /discriminatory comments 7 32 34 21 36 36 4
Assault 5 40 12 - 1 16 4
Excessive force 2 14 7 1 2 8 3
Entry/search - 39 1 1 2 8 1
Property 10 47 6 3 6 13 -
Harassment / threats - 53 13 4 10 27 5
Neglect of duty 18 91 12 13 35 68 8
Traffic - 3 4 3 8 6 -
Misuse of authority 15 49 5 8 6 24 1
Criminal - 6 2 - - 6 -
Practices /procedures 4 23 1 11 7 12 -
Arrest /Detention 3 20 4 2 - 7 3
Miscellaneous 6 36 5 4 8 19 1
TOTAL 70 453 106 71 121 250 30 1101

Contact Officer and Copyright Details

Ian Ireland Ph. 06 277 2438
17 June 1996
Bills Digest Service
Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

PRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1323-9032
© Commonwealth of Australia 1996

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1996.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 17 June 1996

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