Bills Digest No. 90  1999-2000 Australian Federal Police Legislation Amendment Bill 1999

Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Australian Federal Police Legislation Amendment Bill 1999

Date Introduced: 29 September 1999

House: House of Representatives

Portfolio: Minister for Justice and Customs

Commencement: In general, the legislation commences six months and one day after Royal Assent if not commenced earlier by Proclamation.(1)

Purpose

The Bill amends the Australian Federal Police Act 1979 (Cwlth) to change the Australian Federal Police (AFP) employment regime and make changes to the statutory powers of the AFP Commissioner. It also contains consequential and transitional amendments.

Background

History of the Australian Federal Police

Until 1917 Commonwealth offences were investigated by Commonwealth public servants or State police. However, pressure to create a Commonwealth police force grew-especially after the passage of the Crimes Act 1914 (Cwlth) and following growing reluctance of State police forces to investigate Commonwealth offences. A Commonwealth Police Force was established in 1917 when regulations were made under the War Precautions Act 1914 (Cwlth). The immediate impetus for the regulations was an incident in November 1917 in which eggs were thrown at Prime Minister Billy Hughes at a conscription rally in Queensland. When Hughes ordered a Queensland policeman, Senior Sergeant Kenny, to arrest the assailant Sergeant Kenny responded that he did not accept Hughes' authority and only recognised Queensland laws.(2) During its short life (1917-1919), the Commonwealth Police Force existed primarily to monitor the activities of unlawful associations.

From 1917 to 1979 Commonwealth police forces existed in various incarnations. Policing functions were often combined with protective security and intelligence gathering services. The period was marked by disagreement about the role of a Commonwealth police force. And it was characterised by duplication of Commonwealth law enforcement effort and lack of coordination between agencies with law enforcement responsibilities.(3)

In the period to 1979, some federal police agencies were created by administrative action and some by Commonwealth statute. A small Commonwealth Police Force based mainly in Queensland existed from 1917-1919. The Commonwealth Investigation Branch (1919-1945) combined the police and the Special Intelligence Unit. In 1945, the Commonwealth Investigation Branch was re-named the Commonwealth Investigation Service with responsibility for investigation and security. The Service existed from 1945-1960 although in 1949 its security function was given to the newly created Australian Security and Intelligence Organisation. The Commonwealth Police Act 1960 (Cwlth) created a Commonwealth Police Force (1960-1979) with a protective security arm and investigative functions. Over time it also acquired specialist capabilities such as a criminal intelligence unit and a fingerprinting bureau.(4)

In addition to the Commonwealth police, a Federal Capital Police Force was established following the opening of Parliament House in Canberra in 1927 and commissioned to enforce local laws in the ACT and protect Parliament House.(5)

During the 1970s there were a number of inquiries into the efficiency and effectiveness of the Commonwealth Police Force and growing concern about organised crime in Australia. Inquiries conducted in the 1970s included the Milte Inquiry (1973), the Carmody Report (1974) and the Bennett Report.(6) However, the AFP was not established until 1979, following a report to the Commonwealth Government by former London Metropolitan Police Commissioner, Sir Robert Mark.(7) Mark's appointment followed the bombing of Sydney's Hilton Hotel in March 1978. His inquiry was given the task of examining policing resources, protective security and counter-terrorism.(8) Mark recommended the amalgamation of the Commonwealth Police Force and the ACT Police Force-a recommendation given statutory force with the enactment of the Australian Federal Police Act 1979.

Further changes occurred in the 1980s. As a result of the Australian Federal Police Amendment Act 1980 the functions and most of the staff of the Federal Narcotics Bureau were incorporated into the AFP. Another significant development occurred in 1984 when protective service components were removed from the AFP(9) and a separate Australian Protective Service was established.(10)

Legislative basis, structure and functions

The executive power of the Commonwealth found in section 61 of the Constitution combined with section 51(xxxix)(11) provide the bases for the Australian Federal Police Act 1979 (the Principal Act).

The AFP has primary responsibility for investigating offences against Commonwealth laws.(12) Commonwealth offences are found in the Crimes Act 1914 (Cwlth) and in a raft of other Commonwealth legislation such as the Customs Act 1901. The AFP also has links with police services in the States and Northern Territory, the National Crime Authority, the Australian Transaction Reports and Analysis Centre and the Australian Customs Service. Its criminal intelligence liaison staff are based in 16 countries. It has a representative attached to Interpol and provides members for United Nations peacekeeping operations in Cyprus, Bougainville and East Timor.(13)

The force is presently made up of the Commissioner of Police, Deputy Commissioners, commissioned and non-commissioned police officers, and staff members.(14) Staff members are defined as senior executive officers and other officers who are not police officers. As at 30 June 1999 the AFP had a workforce of 2517 of which 1887 were police members and 630 were staff members. All are employed under the Principal Act.(15) Commissioned and non-commissioned police officers and staff members are appointed for a fixed term under section 26D of the Principal Act and the Australian Federal Police Regulations.(16)

Commissioned and non-commissioned ranks are defined in Australian Federal Police Regulations. The Commissioner determines the number of members appointed to each rank and the Governor-General appoints qualified people to positions as commissioned and non-commissioned officers on the recommendation of the Commissioner. At present, the Regulations specify that the ranks of constable and sergeant are non-commissioned ranks. Superintendent, Commander and Assistant Commissioner are commissioned ranks.(17) Competencies and qualifications for positions, including those of staff members, are set out in the Australian Federal Police Regulations.(18)

The Principal Act also enables the Commissioner, within any policy guidelines issued by the Minister, to make written determinations about the terms and conditions of service of members and staff members. Other matters dealt with by the Principal Act include advancement, secondment, special leave, maternity leave, transfer, promotion, resignation, retirement and appeal processes.(19) It also regulates the use of listening devices and the loss of superannuation rights and benefits in certain circumstances.(20)

The functions of the AFP are set out in section 8 of the Principal Act. They include providing 'police services' for the Australian Capital Territory and providing police services in relation to Commonwealth laws, property and places. 'Police services' are defined in section 4(1) as services involved in crime prevention, protection of persons against injury or death and protection of property from damage.

The Commonwealth Minister responsible for the AFP is the Minister for Justice and Customs. Under section 13 of the Principal Act the Minister can give written directions to the Commissioner about the general policy to be pursued in the performance of AFP functions. The most recent Ministerial Direction was issued in February 1999 and operates for the period 1999-2001. In it the Minister set out the outcomes the Government expects the AFP to achieve and its special areas of focus. The latter includes:

• targeting illicit drug trafficking, organised crime, serious fraud against the Commonwealth, money laundering and the interception of assets involved in or derived from these activities;
• providing community policing services in the ACT, Jervis Bay and external territories;
• providing protective security services to the Governor-General, members of the Commonwealth Parliament, internationally protected persons, other persons of specific interest to the Commonwealth, witnesses and special events; and
• dealing with new forms of crime such as economic crime, transnational crime and computer crimes.(21)

In addition to the matters referred to earlier, the Australian Federal Police Regulations detail procedures for appointments, transfers and promotions, appeals against promotions and retirements, the form of oaths and affirmations taken by AFP members, and procedures where AFP members resign to stand as candidates in parliamentary elections.

The Australian Federal Police (Discipline) Regulations stipulate standards of conduct for AFP appointees, provide for disciplinary offences and the disciplinary powers of the Commissioner, and set out the circumstances in which AFP appointees are liable to dismissal when they have been convicted of a criminal offence.

The Federal Court decision in Anderson v. Sullivan(22)

In 1997, a single judge of the Federal Court (Finn J) handed down a decision about whether a member of the AFP could be lawfully directed to provide a urine sample for drug testing purposes in the absence of an express statutory mandate. In the context of the Australian Federal Police Legislation Amendment Bill 1999, the decision is relevant for a number of reasons. First, because of the specific issue which it raised-compulsory drug testing of police officers. Second, because it touched on the question of the common law and statutory powers of the Police Commissioner and the distinctive nature of police service.

In relation to the first issue, Finn J concluded that the Police Commissioner did have the power to issue a direction requiring an AFP member to provide a urine sample where there was reasonable suspicion of illicit drug use. Nevertheless, he referred to the 'complex and ... decidedly imperfect system adopted by the AFP in this important matter' and he added 'It is to be hoped that a more clear and certain system will be devised for the future.'(23) The Bill provides a statutory basis for alcohol and other drug testing of AFP employees.

In relation to the second issue, Finn J commented:

The Bill specifies what are called the Commissioner's command powers and also separates those powers from the Commissioner's powers as an employer.

Main Provisions

Constitution, functions and powers of the AFP

Items 27-37 amend Part II of the Australian Federal Police Act 1979 which relates to the establishment, functions and powers of the Australian Federal Police (AFP).

Item 28 repeals existing section 6 and substitutes new section 6. At present, the AFP is constituted by a Commissioner and Deputy Commissioners of Police, commissioned police officers, non-commissioned officers and certain staff members. Staff members are senior executive officers and other officers who are not police officers.

New section 6 states that the AFP consists of the Commissioner and Deputy Commissioner of Police, AFP employees and special members. An 'AFP employee' is defined in new subsection 4(1) as a person employed under section 24 of the Act. The definition of 'special member' contained in subsection 4(1) is amended to mean a person appointed under new section 40E. In other words, there will not be a category of 'member' under the proposed legislation. The Commissioner will, instead, employ AFP employees and will be able to declare that an employee is an AFP member if that person meets competency and qualification requirements (new section 40B).

Item 32 enables the Commissioner to declare in writing that an AFP member holds a particular Commonwealth law rank. Despite the fact that the rank system is abolished by the proposed legislation, there may be occasions in which Commonwealth laws under which the AFP acts make reference to particular ranks. [See also items 29-31].

Item 38 repeals Part III of the Principal Act. Part III is headed 'Administration.' It provides that the Commissioner administers and controls the operations of the AFP.(25) It also provides that, following consultations with the Commissioner and the Secretary, the Minister can issue general policy directions to the AFP.(26) It enables arrangements to be made for the provision of common police services.(27) Part III of the Principal Act also empowers the Commissioner to issue General Orders and General Instructions to the AFP.(28) In the Bill, these provisions appear in Part IV.

Commissioner, Deputy Commissioners and AFP employees

Item 39 repeals the existing heading, 'Part IV-Appointment and service'. Part IV will be renumbered as Part III with the heading 'Commissioner, Deputy Commissioners and APF employees etc.'

Item 41 repeals existing subsections 17(5) and (6) of the AFP Act. These subsections provide for compulsory retirement at age 60 for the Commissioner and Deputy Commissioners except in special circumstances. Item 13 repeals the definition of 'maximum age' which is found in subsection 4(1) of the Principal Act. Provisions in the Principal Act which refer to a 'maximum age' for other police officers and staff members are also repealed. In other words there will no longer be a compulsory retirement age in the AFP. Aside from amendments relating to retiring age the Bill makes few changes to provisions in the Principal Act dealing with the appointment of the Commissioner and Deputy Commissioners.

Item 45 repeals Divisions 2 and 3 of Part IV of the Principal Act. Division 2 deals with the appointment of commissioned and non-commissioned police officers, staff members and special members. Division 3 deals with undertakings, oaths and affirmations. Amongst the provisions removed by the repeal of Division 2 is existing section 26D which deals with fixed term appointments. The Explanatory Memorandum states that the Bill:

New Division 2 of new Part III will deal with the employment of AFP employees. New Division 3 of new Part III deals with the engagement of consultants. Provisions for consultants are currently found in section 39B of the Principal Act. New Division 4 of New Part III deals with undertakings, oaths and affirmations.

New section 23 provides that the Police Commissioner has all the rights, duties and powers of an employer in respect of AFP employees. These rights, duties and powers may be prescribed by regulation.

New section 24 enables the Commissioner to engage employees subject to conditions including citizenship, formal qualifications, security and character clearances, health clearances and secrecy requirements. Under new subsection 24(4) the Commissioner cannot employ non-Australian citizens unless he or she considers it appropriate to do so.

New section 27 deals with remuneration and other conditions for AFP employees-except for AFP employees performing overseas duties or special operational duties [see new subsection 40H)]. Remuneration and conditions are determined by the Commissioner and may adopt, with or without modification, the provisions of an award or certified agreement.(30) However, an award, certified agreement or Australian workplace agreement prevails over the Commissioner's determination to the extent of any inconsistency.

Under new section 28 the Commissioner can, at any time, terminate an AFP employee's employment in writing.

If an AFP employee is convicted of a Commonwealth, State or Territory offence which carries a penalty of at least 12 months imprisonment or a life sentence, the AFP employee's employment is terminated by the operation of new subsection 29(1). Automatic termination of employment apparently occurs even where a court, after being satisfied that the person is guilty, decides to dismiss the charge or discharges the person [new subsection 29(2)]. An example of where this might happen is under section 19B of the Crimes Act 1914 (Cwlth). Under section 19B a court can only order the discharge of an offender despite being convinced that the charge is proven after taking into account matters such as the character, antecedents, cultural background, age, and health of the offender together with any extenuating circumstances and the extent to which the offence is of a 'trivial nature.'

New section 30 deals with resignation. Under existing section 37 of the Principal Act there are two different regimes for the resignation of staff members and members of the AFP. A staff member can resign at any time by giving written notice to the Commissioner [subsection 37(1A)]. The resignation takes effect from the date specified in the notice [subsection 37(1B)]. In contrast, an AFP member must, in general, give at least three months written notice to the Commissioner before resigning [subsection 37(1)]. A member who ceases to serve while he or she continues to be a member is liable to a maximum penalty of $500 [subsection 37(3)]. In contrast, new section 30 provides for a single resignation regime for all AFP employees. In general, an AFP employee must give 14 days written notice to the Commissioner before he or she can resign. There are also provisions relating to resignation for the purpose of standing for parliamentary election [see new paragraph 70(g)].

Retirement on invalidity

New sections 32 and 33 substantially re-enact existing sections 38B, 38C and 38D of the Principal Act which deal with compulsory retirement on invalidity grounds. A major difference is that, whereas the Principal Act sets out the process for appeals against the Commissioner's decision to retire a person without their consent on the grounds of invalidity (sections 38D and 38E), new subsection 33(4) provides that regulations may make provision for a review process.

In providing for an appeal mechanism the Principal Act specifies that after making its decision an Appeal Committee must give written reasons for its decision to each party within 28 days of making its recommendation to the Commissioner [subsection 38E(3)]. In contrast, if regulations are made under new subsection 33(4)(31) there is no requirement that they provide for written reasons for decision to be given to the AFP employee. Other differences between the Principal Act and the proposed amendments relate to providing the employee with medical or psychiatric information relevant to the retirement decision which may be prejudicial to the employee's health or well-being. The Principal Act provides that this information can be excluded from the statement of reasons given to the employee. However, the employee must be told that information has been excluded and advised that he or she can nominate a medical practitioner to receive the information [subsections 38E(4) & (5)]. In contrast, new section 33 does not mandate that an employee be told that information has been excluded from any statement of reasons provided to him or her, nor does it appear to require the regulations to provide that a medical practitioner can be nominated to receive the information.

New section 35 enables the Commissioner to engage consultants or independent contractors to perform services. Existing section 39B of the Principal Act is somewhat different. It allows the Commissioner to engage persons with suitable qualifications and experience as consultants to the AFP.

New section 36 provides that the Deputy Commissioner, AFP members and special members must enter into undertakings about the performance of their duties and make an oath or affirmation. The Commissioner is required to make an oath or affirmation. Undertakings, oaths and affirmations will be prescribed by regulation. These provisions appear to be substantially similar to those in existing section 28 of the Principal Act.

Administration and control

Item 46 repeals existing Part V entitled 'Terms and conditions of service' and inserts new Part IV which deals with the Commissioner's command powers.

Amongst the provisions removed by the repeal of Part V are existing subsections 30(2) and (3) dealing with adjustment payments. Under subsection 30(2) an AFP member or staff member is entitled to an adjustment payment in accordance with a written determination made by the Commissioner. An adjustment payment is defined in subsection 4(1) of the Principal Act as 'a payment made in recognition of the fact that the person's employment is for a fixed term.' Statutory fixed term appointments will be abolished under the proposed Australian Federal Police Legislation Amendment Act 1999.

New section 37(1) provides that the Commissioner administers the AFP and controls its operations. The Minister may give the Commissioner written directions about general policy matters [new subsections 37(2) & (3)]. Directions may also be given and arrangements made about the use of common police services [new subsections 37(3) & (5)]. The Commissioner must comply with such directions [new subsection 37(4)]. New subsection 37(6) requires the Commissioner to give reports to the Minister about the AFP. As stated earlier, new section 37 substantially reproduces section 13 of the Principal Act.

The Commissioner's powers may be exercised through the issuing of written orders about administration and the control of operations (new section 38). New section 38 replaces existing section 14 of the Principal Act which enables the Commissioner to issue General Orders and General Instructions. Under the Principal Act, General Orders relate to the administration of the AFP. General Instructions relate to the conduct of AFP operations.

AFP employees and special members must comply both with the Commissioner's Orders and with any specific directions given by the Commissioner, a Deputy Commissioner or a supervisor (new sections 39 & 40).

New section 40A is a provision about self-incrimination. An AFP employee or special member cannot refuse to supply information if required to do so under new sections 39 or 40 on the grounds that it might incriminate him or her [new subsection 40A(1)]. However, such information cannot be used as evidence except in disciplinary proceedings [new subsection 40A(2)]. An AFP employee or special member may also be required to provide information under the drug testing regime found in new sections 40M and 40N. New section 40Q deals with the admissibility of such material in legal proceedings (see below). At present, provisions about the admissibility of evidence are contained in regulation 5 of the Australian Federal Police (Discipline) Regulations.

Members, commissions and special members

If the Commissioner is satisfied that an AFP employee meets competency or qualification requirements set down in a written determination then the Commissioner can declare that employee to be a member of the AFP (new sections 40B & 40C). At present, section 26 of the Principal Act provides that the Commissioner can appoint a person to be a non-commissioned police officer of a certain rank if the person meets the competencies and qualifications set down in the regulations. Competency and qualification requirements are presently set down in regulation 5 of the Australian Federal Police Regulations. For both non-commissioned and commissioned ranks, regulation 5 generally focuses on matters such as citizenship, age, mental and physical health, character and reputation, and appropriate experience, qualifications and training.

The Governor-General can declare an AFP member to be a commissioned police officer if the Commissioner makes a recommendation to the Minister and considers that the person is competent and qualified in accordance with the regulations [new subsections 40D(1) & (2)]. Such declarations can also be made by the Commissioner or Deputy Commissioner if they are appropriately authorised by the Governor-General [new subsections 40D(4) & (5)]. Provisions about the appointment of commissioned officers are currently found in section 25 of the Principal Act and are broadly similar to those being proposed.

New section 40E enables the Commissioner to appoint special members of the AFP. Section 27 of the Principal Act currently deals with the appointment of special members.

The Commissioner is empowered to determine the duties of an AFP employee and where those duties are to be performed (new section 40H).

Assignment and suspension of duties

New section 40J enables regulations to be made about suspending AFP employees from duty. At present, there are provisions relating to suspension for disciplinary reasons in the Australian Federal Police (Discipline) Regulations.(32) Section 64AA of the Principal Act also deals with suspended members and staff members. Existing subsection 64AA(2) provides that where the appointment of a member or staff member has been suspended during maternity leave under section 34A, the period of the suspension forms part of the person's service. However, existing section 34A will be repealed along with the rest of existing Part V of the Principal Act, as will subsection 64AA.

Termination of employment for serious misconduct

New section 40K enables the Commissioner to terminate an AFP employee's employment if the Commissioner believes on reasonable grounds that the employee's conduct or behaviour amounts to 'serious misconduct' and is damaging or likely to damage the professional self-respect or morale of AFP employees or the AFP's reputation. The employee must be given a copy of the Commissioner's declaration. 'Serious misconduct' is defined in new subsection 40K(3) as corruption, serious abuse of power, serious dereliction of duty, or other seriously reprehensible act or behaviour.

The provisions of new section 40K generally replicate those of existing section 26F of the Principal Act.

Financial statements

New section 40L deals with the production of statements about an AFP employee's financial affairs. Such statements must be prepared by an AFP employee or special member when a direction is issued to them by the Commissioner. New subsections 40L(5)-(6) provide that a person is not excused from providing such a statement on the grounds that it might incriminate him or her. However, such a statement is not admissible in evidence against that person except in the case of disciplinary proceedings [new subsection 40L(6)].

The Explanatory Memorandum records that financial statements:

Alcohol and other drug testing

The Australian Federal Police (Discipline) Regulations provide that AFP appointees must not render themselves unfit for duty by consuming alcohol or drugs.(34)

Additionally, illicit drug testing is carried out in the AFP in a number of circumstances. Drug testing policies appear to have been first considered for the AFP in the early 1990s.(35) Added impetus to the introduction of random and targeted testing was provided by the 1996 First Interim Report of the Wood Royal Commission in NSW. In late 1996 following meetings between the AFP Commissioner, the AFP Association and others agreement was reached on a two-phase program:

In the financial year 1998-99, the AFP Annual Report records 160 voluntary targeted tests, 287 tests of applicants for sworn positions, 199 tests of applicants for unsworn positions and 4 reasonable suspicion tests.(37)

New Division 8 provides a statutory basis for compulsory alcohol and other drug testing. New section 40M provides that an authorised person can give an on-duty AFP employee or special member a written direction to take a breath test or provide a body sample for the purposes of a prohibited drug test. A blood test may be required if a breath test is positive for alcohol. A 'body sample' is defined in new subsection 4(1) as human biological fluid, biological tissue or breath. The Bill provides two ways in which 'prohibited drugs' can be defined. First, they are narcotics as defined by the Customs Act 1901 (Cwlth) [see new section 4(1)]. These substances are listed in Schedule VI of the Customs Act and include barbiturates, cannabis, cocaine, heroin and LSD as well as drugs like codeine. Additionally, new section 4A enables the Commissioner to specify any drugs as 'prohibited drugs' by way of written determination.

Specific provisions will cover drug testing of police where a person is killed or seriously injured in an incident involving police (new section 40N). If a person is killed or seriously injured in an incident involving a motor vehicle, vessel or while in police custody, an AFP employee or special member who is directly involved in the incident while on duty may be required to submit to alcohol and other drug testing [new subsection 40N(1)]. If a person is killed or seriously injured as a result of 'on-duty' police fire or physical force, an AFP employee or special member can be required to submit to alcohol and other drug testing [new subsection 40N(2)]. A directive for drug testing must be given as soon as practicable after the incident [new subsection 40N(3)] and must be complied with [new subsection 40N(5)].

Under new section 40P, regulations can be made prescribing who is authorised under the section to give directives and conduct tests under new sections 40M and 40N and the way testing is to occur. The consequences of a positive test or of failure to comply with a directive for testing may also be prescribed by regulation [see also new paragraph 70(i)].

Test results or information obtained during the process of drug testing are not admissible as evidence against an AFP employee or special member except in the case of disciplinary proceedings, termination of employment decisions, proceedings under the Safety, Rehabilitation and Compensation Act 1988 (Cwlth) or if the person who is tested sues the Commonwealth in tort [new section 40Q].

Disciplinary proceedings and superannuation

Item 67 repeals existing section 52 and inserts new section 52. These provisions deal with the effect of disciplinary proceedings on a person's employment and superannuation status.

New section 52 has been drafted to reflect the changed terminology of the proposed legislation. If a person is charged with a disciplinary offence and would otherwise cease to be an AFP employee on or after the day on which the disciplinary proceedings commence, the person is taken not to have ceased to be an AFP employee and is regarded as being suspended without pay [new subsection 52(1)]. In such a case, the person cannot continue to make employee contributions to a superannuation scheme [new subsection 52(2)]. When the disciplinary proceedings have been finalised, the person is then taken to have ceased employment on the cessation day [new subsection 52(3)]. New subsection 52(4) deals with entitlements to interest on superannuation contributions.

Provisions relating to appointment

Item 85 repeals existing section 68. Like its predecessor, new section 68 deals with matters such as proof of appointment of Deputy Commissioners, members and special members but imports the new terminology used in the Bill.

Item 85 also inserts new section 69 which prohibits the Commissioner or the Commissioner's delegate from using patronage or favouritism in relation to AFP employees. New section 69 replaces existing section 36A of the Principal Act which prohibits patronage and favouritism and also deals with the application of the merit principle and prohibits discrimination.(38)

Application of the Workplace Relations Act 1996

New section 69B limits the operation of the Workplace Relations Act 1996 in relation to the AFP.

New subsection 69B(1) provides that except for provisions relating to strike pay and freedom of association contained in Parts VIIIA or XA of the Workplace Relations Act, that Act does not apply to matters covered by Divisions 2 to 8 of Part IV, disciplinary matters, entitlements to adjustment payments or any matter prescribed by regulation.

Part IV encompasses what are called the Commissioner's command powers.(39) These powers are distinguished in the legislation from the Commissioner's employer powers in Part III. Divisions 2 to 8 of Part IV cover matters such as the Commissioner's power to declare an AFP employee to be an AFP member, the Commissioner's power to determine competency and qualification requirements, the power to declare an AFP member to be a commissioned police officer, the Commissioner's power to appoint special members, secondments of AFP members, assignment of duties, suspension from duties, termination of employment for serious misconduct, the Commissioner's power to direct that an AFP employee or special member provide a financial statement, and alcohol and other drug testing.

New subsection 69B(2) provides that with the exception of provisions that deal with termination of employment (Division 3 of Part VIA), the Workplace Relations Act does not apply to the termination of employment of AFP employees.

New subsection 69B(3) is about the interaction of the proposed Australian Federal Police Legislation Amendment Act 1999 and the Workplace Relations Act and is designed to 'avoid doubt.' A matter dealt with by the proposed legislation which is not mentioned in new subsections 69B(1) and (2) will not be covered by the Workplace Relations Act if the Workplace Relations Act 'would not otherwise apply' to it.

The Explanatory Memorandum explains the limited application of the Workplace Relations Act in terms of the special nature of AFP employment stating:

The Explanatory Memorandum also refers to two federal court judgments-that of the High Court in Police Service Board v. Morris(41) and that of the Federal Court in Anderson v. Sullivan.(42) In the latter case, Finn J quoted the judgement of Brennan J in Police Service Board v. Morris as follows:

Finn J also quoted from the joint judgment of Wilson and Dawson JJ in Police Service Board v. Morris where they remarked that as members of a disciplined force the police 'voluntarily undertake the curtailment of freedoms which they would otherwise enjoy.' His Honour added:

Schedule 2-consequential amendments of other legislation

Schedule 2 amends 24 pieces of Commonwealth legislation as a result of the proposed Australian Federal Police Legislation Amendment Act 1999.

One of the statutes amended by Schedule 2 is the Administrative Decisions (Judicial Review) Act 1977 (Cwlth). The AD(JR) Act enables an aggrieved person to ask the Federal Court to review Commonwealth administrative decision. Section 13 of the AD(JR) Act enables such a person to obtain access to the reasons for the decision-maker's decision. However, some decisions are exempted from the ambit of section 13.

At present, paragraphs (z) and (za) of Schedule 2 of the AD(JR) Act exempt decisions relating to promotions and transfers etc of AFP members, and Commissioner's determinations terminating appointments under section 26E of the Principal Act. Under section 26E of the Principal Act the Commissioner can make a written determination that the fixed term appointment of a commissioned or non-commissioned police officer or staff member ends before the term expires.

Item 1 of Schedule 2 repeals paragraphs (z) and (za) of Schedule 2 of the AD(JR) Act and substitutes new paragraph (z). The effect is that section 13 of the AD(JR) Act will not apply to Commissioner's decisions about secondment, assignment and termination of employment (new sections 40F, 40H and 28 in the Bill).

Part 1 of Schedule 3-application and transitional provisions relating to amendments made by Schedule 1

Item 2 (together with other items in Part 1 of Schedule 3) enables the employment or appointment of existing AFP officers and others to be continued under the new employment regime introduced by the Bill.

Sub-item 2(1) of Schedule 3 provides that on commencement a person who has been a commissioned police officer is taken to be an AFP employee and declared to be a commissioned police officer.

Sub-item 2(2) provides that on commencement a person who has been a non-commissioned police officer is taken to be an AFP employee and declared to be a member of the AFP.

Similar provisions are made in relation to former staff members, former special members, former temporary employees, and former consultants.

Item 3 continues the appointments of senior executive commissioned police officers and senior executive officers. Similarly, item 5 continues secondments to and from the AFP which were in place immediately before the commencement of the proposed legislation.

Items 6, 7 and 8 provide for the continuation of determinations about the terms and conditions of AFP members and staff members(45), awards or certified agreements, and determinations of adjustment payments made under the former Act.(46)

Item 9 provides that the Commissioner may terminate the employment of an AFP employee for pre-commencement misconduct as if the conduct had occurred after the commencement of the new legislation.

Item 19 enables the Governor-General to make regulations under Part 1 of Schedule 3. As a result of sub-item 19(4) these regulations prevail over the former Act and regulations. As a result of sub-item 19(5) these regulations can be retrospective but cannot pre-date the commencement of item 19.

Part 2 of Schedule 3-application and transitional provisions relating to amendments made by Schedule 2

Items 20-33 contain application and transitional provisions in relation to the various Acts that will be amended consequentially as a result of the enactment of the Australian Federal Police Legislation Amendment Act 1999.

Part 3 of Schedule 3-transitional provisions relating to amendments made by Schedules 1 and 2

Item 34 enables warrants and other instruments which could be executed immediately before the commencement of the proposed Australian Federal Police Legislation Amendment Act 1999 by an AFP member, staff member or special member to be executed at and after the commencement time by the Commissioner, Deputy Commissioner, an AFP employee or an AFP special member.

Item 35 enables the Governor-General to make regulations dealing with transitional or savings matters in relation to the amendments made by Schedules 1 or 2.

Concluding Comments

The Government has said that the Bill is designed to achieve a number of purposes including moving the AFP's employment regime from the Principal Act to the Workplace Relations Act 1996 'consistent with the Government's policies for workplace and public sector reform' and abolishing the AFP's rank-based structure in order to create a 'more flexible and responsive organisation.'(47)

In October 1999, the Scrutiny of Bills Committee drew the Senate's attention to a number of matters in the Australian Federal Police Legislation Amendment Bill 1999. In summary, these related to:

• conferral on the Police Commissioner of powers to issue general orders for the administration and control of the AFP. The Committee was concerned that some of these orders might be legislative in character but are not disallowable instruments.
• abrogation of the privilege against self-incrimination in new subsections 40A(1), 40M(3) and 40N(5). The Committee acknowledged the restrictions placed by the Bill on the use of material which has been compulsorily obtained as evidence in legal proceedings. In general, such material can only be used in disciplinary proceedings. However, the Committee remarked:

• failure to provide that the Commissioner must give reasons for dismissing an AFP employee.

In relation to these matters it might be useful to note the following. While not conclusive of the question about whether Commissioner's orders should be disallowable instruments, it should be pointed out that under the Principal Act, the Commissioner's General Orders and General Instructions are not disallowable instruments.

The Scrutiny of Bills Committee also commented on the failure to provide that the Commissioner must give reasons for dismissing an AFP employee. The Bill amends the AD(JR) Act so that termination decisions under new section 28 are excluded from the ambit of section 13 of the AD(JR) Act. Section 13 enables a person aggrieved by an administrative decision to obtain access to the decision-maker's reasons. However, it should be noted that, at present, the Commissioner's decisions to terminate fixed term contracts are also excluded from the operation of section 13 of the AD(JR) Act. The Government has pointed out that termination decisions under new section 28 will be subject to the termination of employment provisions of the Workplace Relations Act which require reasonable notice and reasons for dismissal to be given.(49)

The Bill has also been subject to examination by the Senate Legal and Constitutional Legislation Committee. The Committee has a reporting date of 6 December 1999. The referral was recommended by the Senate Selection of Bills Committee.

The reasons for referral and principal issues for consideration were stated to be:

Other issues raised by the Bill include:

• the automatic dismissal provision found in new section 29 which is activated when an AFP employee is convicted (subject to section 19B of the Crimes Act 1914 or a corresponding provision in a State or Territory law) of an offence which carries a penalty of at least 12 months imprisonment (see page 7 of this Digest)
• changes to the statutory processes for appeals against compulsory retirement on invalidity grounds (see pages 7-8 of this Digest)
• changes to maternity leave provisions (see page 10 of this Digest)
• the provision found in new section 69B(1) which enables the application of the Workplace Relations Act to be excluded by way of regulation (see pages 12-14 of this Digest).

Endnotes

2. The commencement of items 34, 47 and 48 of Schedule 2 is tied to the commencement of the Public Service Act 1999. These items relate to the Merit Protection (Australian Government Employees) Act 1976 (Cwlth) and the Public Service Act 1922 (Cwlth). These items are unlikely to commence because the Public Service Act 1999 is scheduled to commence on 5 December 1999. The items only commence if the Public Service Act 1999 has not commenced by the time the proposed Australian Federal Police Legislation Amendment Act 1999 commences.

3. Peter Donovan, Changing the Guard. A history of the Australian Protective Service, AGPS, Canberra.

4. Questions about such matters re-surface from time to time-see Report of the Review of Commonwealth Law Enforcement Arrangements, AGPS, Canberra, February 1994.

5. ibid.

6. Donovan, op.cit.

7. Review of Commonwealth Law Enforcement Arrangements, op.cit.

8. Robert Mark, Report to the Minister for Administrative Services on the Organisation of Police Resources in the Commonwealth Area and Related Matters, AGPS, Canberra, 1978.

9. ibid.

10. Australian Federal Police Amendment Act 1984 (Cwlth).

11. See also Australian Protective Service Act 1987 (Cwlth).

12. Section 51(xxxix) enables the Parliament to make laws on matters incidental to the execution of any constitutional power by the Parliament, the Government or the judiciary.

13. Other Commonwealth law enforcement bodies include the National Crime Authority, the Australian Customs Service, the Australian Securities Commission and the Australian Transaction Reports and Analysis Centre.

14. Australian Federal Police, Annual Report 1998-99.

15. Section 6, Principal Act.

16. Annual Report, op.cit.

17. Regulation 7.

18. Regulations 3 & 4, Australian Federal Police Regulations.

19. Regulation 5.

20. Part V.

21. Sections 12B-12L and Part VA respectively.

22. Annual Report, op.cit., pp. 79-80.

23. (1997) 148 ALR 633.

24. (1997) 148 ALR 633 at 654.

25. (1997) 148 ALR 633 at 646.

26. Subsection 13(1).

27. Subsection 13(2).

28. Subsections 13(3) & (5).

29. Section 14.

30. Page 1.

31. As with the new Public Service Act 1999, it may appear that the Commissioner (like a Departmental Secretary) has a free hand in relation to remuneration and condition. In reality, however, these matters will be determined by awards and agreements.

32. It is likely that regulations will be made.

33. Regulations 20-22.

34. Page 19.

35. Regulation 11.

36. Anderson v. Sullivan (1997) 148 ALR 633 at 636 per Finn J.

37. Anderson v. Sullivan (1997) 148 ALR 633 at 636 per Finn J.

38. Annual Report, op.cit.

39. Section 36A is part of Part V of the Principal Act which is repealed by item 46 of the Bill.

40. That is, the Commissioner's managerial prerogatives.

41. Pages 14-15.

42. (1985) 156 CLR 397.

43. (1997) 148 ALR 633.

44. (1997) 148 ALR 633 at 646-7.

45. (1997) 148 ALR 633 at 647.

46. Under subsection 30(1) of the former Act.

47. Under subsection 30(2).

48. Second Reading Speech, Australian Federal Police Legislation Amendment Bill 1999, September 1999, p. 11033.

49. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No.16 of 1999, 13 October 1999, pp. 5-6.

50. Explanatory Memorandum, p 11 and see, for example, Mr Bruce Baird MP, House Hansard, 20 October 1999, p. 12041.

51. Senate Hansard, 20 October 1999, p. 10062.

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