Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006


Index

Bills Digest no. 162 2005–06

Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006

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 & Copyright Details


Passage History

Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006

Date introduced: 29 March 2006

House: House of Representatives

Portfolio: Attorney-General

Commencement: Sections 1 to 3 commence on date of Royal Assent. Schedules 1 to 5 commence at the same time as the Law Enforcement Integrity Commissioner Act 2006.

Purpose

The Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006 repeals the Complaints (Australian Federal Police) Act 1981 and inserts a new part into the Australian Federal Police Act 1979 to update the complaints and professional standards regime within the Australian Federal Police.

This Bill forms part of a package of Bills. The Law Enforcement Integrity Commissioner Bill 2006 would establish the Australian Commission for Law Enforcement Integrity (ACLEI). The Commissioner will be responsible for detecting and investigating allegations of corruption against the Australian Crime Commission and the Australian Federal Police, and will have the powers of a Royal Commission. The Bills Digest is available here.

The Law Enforcement Integrity Commissioner (Consequential Amendments) Bill 2006 aims to amend a range of acts consequential to the establishment of ACLEI. It applies the full range of police special investigative powers to the Commissioner. The Bills Digest is available here.

On 30 March 2006, the Senate referred the above Bills to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 11 May 2006. The final report is available here.

It was announced on 20 June 2006 that the Coalition party room had cleared amendments to the package of Bills to be introduced to Parliament.

Background

Basis of policy commitment

The central characteristics of the current AFP model of professional standards are contained in the Complaints (Australian Federal Police) Act 1981 (to be repealed by this Bill), the Australian Federal Police (Discipline) Regulations 1979 and the Commissioner's Orders. These provisions provide a structured regime of control of police action, which reflects the view that police behaviour is best controlled by rules of conduct enforced by legalistic charges and determined in certain circumstances by the Federal Police Discipline Tribunal.

The modern history of reviews of the complaints regime of the Australian Federal Police goes back over thirty years with the Australia Law Reform Commission s (ALRC) first report, Complaints Against Police, in 1975. That report was followed by another ALRC report in 1978, also called Complaints Against Police. The work by the ALRC eventually resulted in the Complaints (Australian Federal Police) Act 1981. According to the Minister s second reading speech:

the Bill recognises the need identified by the [ALRC] for certain elements of independence in the receipt, handling, investigation and determination of complaints against police. The first of these elements is use of the Ombudsman as 'neutral territory' for the receipt of complaints, as the investigator of last resort and as public guardian to ensure that adequate and proper steps are taken in relation to complaints. The second element is establishment by statute of a special unit of the Police Force titled the 'Internal Investigation Division' with a specialised and independent function of investigating complaints by members of the public against police. Investigation of complaints against police will normally be carried out by this unit. I mention that a unit of this nature has already been established by the Commissioner by administrative action. The third element of independence will be the establishment of a police disciplinary tribunal whose president will be a judge to hear charges against police officers of breaches of the disciplinary code. However, as recommended by the Commission, criminal charges against police will continue to be dealt with in the ordinary criminal courts.(1)

In 1995, the ALRC was again tasked with inquiring into the Complaints (Australian Federal Police) Act 1981 and the complaints and disciplinary system of the Australian Federal Police. The ALRC report, Integrity: But Not By Trust Alone (ALRC 82) was tabled in Federal Parliament in December 1996. The recommendations in ALRC 82 have not been implemented. In this review, the ALRC observed that AFP processes were outdated and unsatisfactory .(2) The ALRC proposed the establishment of a National Integrity and Investigations Commission as a response to the concerns it identified in its report. The Commission would have jurisdiction over the AFP and NCA, dealing with complaints and an office dealing with corruption.

In 1997, at the request of the Attorney-General, a report by a senior lawyer was conducted into allegations made about the AFP, by a former officer Alan Taciak. Whilst the report was not publicly released, the Attorney-General provided details in a press release on 8 May 1997. The report recommended that the Commonwealth Ombudsman, with enhanced powers, should retain the role of providing external scrutiny of complaints or allegations of police misconduct or corruption.

In November 1997, the Commonwealth Ombudsman released a report on whistle blowing procedures within the AFP entitled Professional reporting and internal witness protection in the Australian Federal Police - a review of practices and procedures. The majority of recommendations were for improved administrative procedures, with greater oversight by the Ombudsman, although there was recognition of the need for consistent legislation on whistleblowers across the Commonwealth.

In 2001, the Senate Legal and Constitutional Reference Committee undertook an inquiry into management arrangements and adequacy of funding of the AFP and NCA. The Committee recommended that:

the procedures for dealing with complaints and allegations be examined with a view to their being simplified and made more transparent, and to ensuring that employees are not disadvantaged by the use of administrative instead of disciplinary processes.(3)

This recommendation led to the appointment of a retired judge, the Hon. Justice William Fisher AO QC, to undertake A Review of Professional Standards in the Australian Police Force (the Fisher review).

Justice Fisher's recommendations centred around the establishment of a 'managerial model' for professional standards rather than a legalistic and formal approach. The Fisher Review observed:

In complaints and discipline matters police services have traditionally tended to focus too much on the aspect of reactive punishment.(4)

The Government s response to the review was released in March 2006 with the introduction of the present Bill. The relevant media release stated that the legislation implements the bulk of the Fisher recommendations (later clarified by the Senate inquiry as 15 out of 23(5)):

In line with best practice in modern management, changes to the AFP s complaints and discipline regime will involve non-punitive managerial measures to improve performance wherever this can be effective. In serious cases the Commissioner of Police will still have the power to dismiss officers whose performance is unsatisfactory.

These changes will ensure a quick, firm and effective response to any unacceptable police conduct. This will provide the best outcomes for AFP management and staff and, most importantly, for the public.

The present systems were put in place around 25 years ago and the AFP has come a long way since then. It needs a system that doesn t waste resources on complex procedures and red tape.(6)

ALP Position

Senator Patricia Crossin, Deputy Chair of the Senate Legal and Constitutional Legislation Committee and Senators Linda Kirk and Joseph Ludwig set out the ALP position on this Bill via Additional Comments in the final report as follows:

First, the Labor Senators note that the Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006 implements the majority in whole or in part of the 2003 Fisher Report's recommendations with respect to AFP professional standards. In relation to recommendation 23, Labor notes and supports the proposed Government amendment to clarify the law around the AFP Commissioner's 'assignment of duties' power in section 40H of the Australian Federal Police Act 1979.

Second, the new complaints and professional standards system is supported by the Labor Senators and is long overdue, however we believe that the committee's comments and recommendations do not go far enough to protect of the rights of 'AFP appointees' (particularly since the Bill gives a lot of discretion to AFP management to make certain decisions to correct behaviour of the AFP appointee involved). We do recognise the undertaking by AFP Commissioner Mick Keelty to address the use of this managerial discretion in the AFP's internal guidelines on the professional standards framework, however, Labor believes more needs to be done.

Labor believes in instances where punitive or pecuniary effects are a consequence of disciplinary action some method of review would be appropriate to avoid unjust or disproportionate outcomes.(7)

Financial implications

The Explanatory Memorandum states there will be no direct financial implications for the Government.(8) However, the Commonwealth Ombudsman gave evidence to the 2006 Senate Legal and Constitutional Legislation Committee inquiry that its resources and funding requirement need to be reviewed in light of its additional responsibilities under the Bill.(9)

Main provisions

Schedule 1 Amendments to Australian Federal Police Act 1979

The main amendments are introduced by item 28 which inserts a new Part V into the Act headed Professional standards and AFP conduct and practices issues. New Part V has nine divisions. New section 40RB provides a simplified outline of Part V.

Definitions

Items 2 to 25 amend existing section 4 of the AFP Act by inserting a number of new definitions relating to new Part V.

Item 2 expands the current definition of AFP appointee (contained in the Complaints (Australian Federal Police) Act 1981) to cover all persons engaged by the AFP Commissioner, including consultants, independent contractors and persons engaged overseas as employees.

Items 14 and 16 insert a definition of corrupt conduct by reference to the definition of engages in corrupt conduct in section 6 of the Law Enforcement Integrity Commissioner Act 2006 if passed (LEIC Act). This provision relates to staff members of law enforcement agencies which includes the AFP. A staff member engages in corrupt conduct if the staff member, while a staff member of the agency, engages in:

  • conduct that involves, or that is engaged in for the purpose of, the staff member abusing his or her office as a staff member of the agency, or
  • conduct that perverts, or that is engaged in for the purpose of perverting, the course of justice, or
  • conduct that, having regard to the duties and powers of the staff member as a staff member of the agency, involves, or is engaged in for the purpose of, corruption of any other kind.

The term engage in conduct is separately defined in section 5 of the LEIC Act as meaning doing an act or omitting to do an act.

Item 15 inserts a definition of corruption issue by reference to the definition in section 7 of the LEIC Act. A corruption issue as an issue of whether a person who is, or has been, a staff member of a law enforcement agency engages in corrupt conduct in the past, present or future. The definition specifies that an allegation may raise a corruption issue even if the identity of the person is unknown, is uncertain or is not disclosed in the allegation or information.

Division 1 Preliminary

The AFP Commissioner may determine the professional standards to be complied with by AFP appointees (item 6 and clause 40RC).

A unit must be constituted within the AFP to undertake investigations of AFP conduct issues and corruption issues that relate to conduct engaged in by AFP appointees (clause 40RD). The head of the unit is responsible directly to the AFP Commissioner (clause 40RE).

'AFP conduct issue' is defined broadly and relates to whether an AFP appointee has engaged in conduct that breaches the AFP professional standards or is corrupt conduct (clause 40RH and item 3). Conduct that was engaged in before the commencement of this section and conduct for which the statute of limitations has passed are included in the definition.

'AFP practices issue' is also defined broadly and concerns the practices and procedures of the AFP, both within and outside of Australia (item 5 and clause 40RI).

Clause 40RK sets out four categories of conduct that define what behaviour is able to be the subject of a complaint in relation to a professional standards issue for the purposes of the Bill.

  • Category 1 conduct (least serious) inappropriate conduct that relates to minor management matters or customer service matters or conduct that reveals a need for improvement by the AFP appointee concerned (item 7 and clause 40RN).
  • Category 2 conduct minor misconduct by an AFP appointee, inappropriate conduct that reveals unsatisfactory behaviour by an AFP appointee or repeated instances of category 1 conduct (item 8 and clause 40RO).
  • Category 3 conduct conduct that is serious misconduct by an AFP appointee or that raises the question whether termination action should be taken, or involves a breach of the criminal law or serious neglect of duty by an AFP appointee, and that is not conduct that raises a corruption issue (item 9 and clause 40RP).
  • The highest category of conduct is conduct giving rise to a corruption issue (item 15 and clause 40RK).

The AFP Commissioner and the Commonwealth Ombudsman may jointly determine by legislative instrument the kind of conduct that falls within category 1, 2 or 3. If a conduct issue potentially falls into a number of different categories, it will be taken to fall within the highest of those categories (clause 40RM).

Division 2 Raising issues

Any person may give information that raises an AFP conduct or practices issue either to the AFP Commissioner or any AFP appointee, in writing or orally (clause 40SA). The information can be given anonymously (paragraph 40SA(2)(b)). The Bill also provides mechanisms for persons in custody to give information (clause 40SB).

A complainant is defined as a person who either expressly or impliedly indicates that he or she wishes to be kept informed of the action taken in relation to an AFP conduct or practices issue (item 13 and sub-clause 40SA(3)).

Information given under clause 40SA must be recorded and dealt with in accordance with subclause 40TA(1). There is an exception for a category 1 conduct issue or an AFP practice issue (subclause 40SC(2)).

Division 3 Dealing with AFP conduct or practices issues

The detailed process by which questions and complaints lodged under Division 2 must be dealt with will be set out by the Commission in a set of orders under existing section 38 of the Act. The question of whether such section 38 orders are purely administrative or may be legislative in character, and as such required to be in the form of a disallowable instrument, was considered by the Senate Standing Committee for the Scrutiny of Bills in relation to the Australian Federal Police Legislation Amendment Bill 1999.(10)

The Commissioner can take training and development action (clause 40TC), remedial action (clause 40TD) and termination action (clause 40TE) or take no further action at his or her discretion (clause 40TF).

New Subdivision D, clauses 40TL to 40TW, deal with special processes for category 3 conduct and corruption issues.

Division 4 Ministerial directed inquiries

This division provides for the administering Minister to direct that an inquiry be held about any matter relating to the AFP. Such inquiries may be additional to, or instead of, a Division 3 investigation. The Minister has wide discretion about how they may be conducted (clause 40UA). The reports do not have to be publicly released (clause 40UD).

If the Minister arranges for an inquiry, he or she must inform the Commonwealth Ombudsman, ACLEI and other persons or bodies that the Minister deems appropriate about the details of the inquiry (clause 40UB).

Division 5 Investigative powers

Where a person is investigating a category 3 conduct issue, a corruption issue (under Division 3) or a ministerially directed inquiry (under Division 4), Division 5 provides additional powers to the investigator (clause 40VA).

The investigator may:

  • conduct the inquiry and may obtain information in a manner that he or she thinks fit (subject to the Division) (clauses 40VB and 40VC)
  • enter and search AFP premises for the purposes of an investigation or inquiry (clause 40VF), and
  • direct an AFP appointee to provide information, produce a document or thing, answer a question or do anything else reasonably necessary for the purposes of the investigation or inquiry (clause 40VE).

The AFP appointee is not excused from complying with the direction on any ground. The production of information or evidence obtained from the AFP appointee is not admissible in evidence against the AFP appointee in civil or criminal proceedings (with some exceptions). Similar powers are given to an investigator conducting a ministerially directed inquiry (clause 40VG).

A number of offences regarding the non-compliance of AFP appointees with an investigation are listed at clause 40VH. The offences attract a maximum penalty of six months imprisonment.

Division 6 Record keeping

The AFP Commissioner must keep adequate records for the purposes of new Part V. There is an exception for category 1 conduct issues that are resolved without being recorded (clause 40WA). Both ACLEI and the Commonwealth Ombudsman are entitled to have access to the records for the purposes of performing their functions.

Division 7 Ombudsman review

The Bill revises the role for the Commonwealth Ombudsman in relation to professional standards. It gives the Ombudsman:

  • the ability to jointly determine, with the AFP Commissioner, the kinds of issues that belong to various categories of conduct
  • access to the records that are kept in relation to AFP conduct and practices issues, and
  • the role of conducting annual and ad hoc reviews of the operation of the new professional standards system.

The Commonwealth Ombudsman's review role is to review the administration of Part V (clause 40XA). At least every 12 months the Ombudsman must inspect the records of AFP conduct and practices issues that have been, or are being dealt with, under Divisions 3 and 4. The Ombudsman may also conduct ad hoc inspections (clause 40XB).

The Commonwealth Ombudsman must prepare an annual report for the Parliament that includes information as to the adequacy of the administration of matters under Divisions 3 and 4 (clause 40XD).

Division 8 Offences

Division 8 provides that it is an offence:

  • to cause, or threaten to cause, detriment to another person on the ground that the person, or another person, gave information for the purposes of Part V ( Victimisation , clause 40YA, maximum 6 months imprisonment)
  • to provide false information about AFP conduct or practices issues (clause 40YB, 20 penalty units), or
  • for an AFP appointee to refuse to give the necessary personal details without reasonable excuse, or to give false details, where a person has requested those details for the purpose of making a complaint or raising a conduct issue, and where the AFP appointee was informed of the reason for requesting the details (clause 40YC, 5 penalty units).

Division 9 Secrecy

Clause 40ZA creates an offence where a person inappropriately records or communicates information acquired via the investigation or inquiry (30 penalty units).

Schedule 2 Repeal of Complaints (Australian Federal Police) Act 1981

Item 1 repeals the above Act. The new complaints and disciplinary regime will now be located within the Australian Federal Police Act 1979 (see Schedule 1).

Item 2 is a transitional provision to provide that the 1981 Act continues to apply to complaints made, or referred by the Commonwealth Ombudsman, under that Act before the commencement of this Schedule.

Schedule 3 Consequential amendments to various Acts

Schedule 3 makes various technical amendments to the following Acts:

  • Administrative Decisions (Judicial Review) Act 1977
  • Australian Crime Commission Act 2002
  • Australian Federal Police Act 1979
  • Australian Security Intelligence Organisation Act 1979
  • Crimes Act 1914
  • Criminal Code Act 1995
  • Ombudsman Act 1976, and the
  • Witness Protection Act 1994.

The Anti-Terrorism Act (No. 2) 2005 introduced new Division 104 and 105 into the Criminal Code dealing with the introduction of control orders and preventative detention in relation to the prevention of terrorist acts. Note that the amendments to the Criminal Code in items 36 to 45 would allow a person subject to a control order or preventative detention order under section 105 to have access to the Ombudsman for the purpose of making a complaint or providing information under clause 40SA.

Note in relation to the Ombudsman Act 1976, item 52 would allow the Ombudsman to be known as the Law Enforcement Ombudsman when performing functions in relation to the Australian Federal Police.

Item 54 would give the Ombudsman the discretion to decide not to investigate a complaint and transfer responsibility for the investigation of the complaint to the AFP Commissioner. The Ombudsman must provide the AFP Commissioner with information as soon as is reasonably practicable and advise the complainant that the complaint has been transferred to the AFP Commissioner to be dealt with under the Act.

Item 55 would allow the Ombudsman to use persons with police training to assist investigations of complaint about AFP conduct or practices issues. The Ombudsman may use an AFP appointee who is made available to him or her by the AFP Commissioner or a State Police officer who has been made available under arrangements made by the AFP Commissioner.

Item 56 would amend existing section 8A of the Ombudsman Act, so that the Ombudsman can make an arrangement with State Ombudsmen in relation to investigations of certain action.

Schedule 4 Amendments to Australian Federal Police Act 1979 relating to alcohol screening tests

Item 3 inserts new clause 40LA relating to alcohol screening tests. The provision gives authority for an on-duty AFP appointee to undergo a screening test for alcohol.

If the test shows alcohol is not present then the AFP appointee may return to his or her duties. If the test shows alcohol to be present or the AFP appointee refuses the screening test then a written direction under section 40M to undergo a breath test may be given.

Schedule 5 Amendments to Australian Federal Police Act 1979 relating to suspension or resignation from, and termination of, employment

Item 3 inserts a new section 30A which provides for resignation of an AFP employee in anticipation of termination of employment.

Concluding comments

The main criticism of this Bill has come from the Australian Police Federation of Australia (AFPA). While generally supporting the proposed changes, the Association told the recent Senate inquiry that it does not believe that the Bill covers all the required areas adequately and thus, should not be passed in its current form.(11)

The AFPA submission argues that:

  • the recommendations of Justice Fisher have not been interpreted in the light of the changes in the industrial environment since 2003
  • non-reviewable outcomes have a punitive action against the employee
  • the AFP tribunal has been removed, but there is no clear indication that AFP regulation 24 still applies to AFP employment decisions (regulation 24 provides that a process for review of employment decisions must exist at all times)
  • there are no reviewable actions in the new structure, as envisaged by Justice Fisher
  • professional standards can be used as an umbrella to incorporate employment related actions to usurp the application of the Workplace Relations Act 1996, and
  • the new structure needs more refinement and specificity in its powers and application to avoid the possibility of abuse and misuse by those empowered within it.(12)

In response, the Senate Legal and Constitutional Legislation Committee made the following recommendations in its 11 May 2006 report relating to this Bill on the basis of the analysis contained in Chapter Four:

Recommendation 12 The committee recommends that the Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006 be amended to provide that a determination on categories of conduct shall be made by the Commonwealth Ombudsman and the Commissioner of the Australian Federal Police within three months of the commencement of the Act.

Recommendation 13 The committee recommends that the lower level disciplinary matters (categories 1 and 2) should be subject to internal review while more serious matters (category 3) should be the subject of external review for example, through the Administrative Appeals Tribunal.

Recommendation 14 The committee also recommends that the possible conflict of the Bill with the Workplace Relations Act 1996 be resolved, before the Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006 is enacted.

Recommendation 15 The committee recommends that the Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006 clarify that the professional standards regime applies to the Commissioner of the Australian Federal Police.(13)

Endnotes

  1. Senator the Hon Durack, Senate Debates, 26 February 1981, p. 170.
  2. See Chapter 3, Integrity: But Not By Trust Alone (ALRC 82)
  3. Order in the Law - The Report of the Inquiry into the Management Arrangements and Adequacy of Funding of the Australian Federal Police and the National Crime Authority , Report of the Senate Legal and Constitutional Committee, 28 August 2001.
  4. The Hon. W.K. Fisher AO QC, A Review of Professional Standards in the Australian Federal Police, Commonwealth of Australia, 2003, p. 59.
  5. Provisions of: Law Enforcement Integrity Commissioner Bill 2006, Law Enforcement Integrity Commissioner (Consequential Amendments) Bill 2006 and Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006 , Report of the Senate Legal and Constitutional Legislation Committee, 11 May 2006, p. 52.
  6. Senator Ellison, Minister for Justice and Customs, Major changes to the oversight of law enforcement , media release, 29 March 2006.
  7. Report of the Senate Legal and Constitutional Legislation Committee, op cit, 11 May 2006, p. 63.
  8. Explanatory Memorandum, p. 1.
  9. Commonwealth Ombudsman, Submission 4, p. 4.
  10. See further the Alert Digest No. 16 of 1999.
  11. Australian Federal Police Association, Submission 6, p. 2.
  12. See Australian Federal Police Association, Submission 6 and Supplementary Submission 6A, Answers to Questions on Notice, as summarised in the Report of the Senate Legal and Constitutional Legislation Committee, op. cit., 11 May 2006, pp. 51 52.
  13. Report of the Senate Legal and Constitutional Legislation Committee, op cit, 11 May 2006, pp. 56 61.

 

Contact Officer and Copyright Details

Sue Harris Rimmer
20 June 2006
Bills Digest Service
Information and Research Services

This paper has been prepared to support the work of the Australian Parliament using information available at the time of production. The views expressed do not reflect an official position of the Information and Research Service, nor do they constitute professional legal opinion.

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

ISSN 1328-8091
© Commonwealth of Australia 2006

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Published by the Parliamentary Library, 2006.

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