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This Digest is prepared for debate. It reflects the legislation as
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This Digest was available from 17 June 1996
CONTENTS
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.
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.
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.
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.
(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 |
|
|
|
|
|
|
|
|
|
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
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the public.
ISSN 1323-9032
© Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library,
1996.
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Last updated: 17 June 1996
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