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
Contact Officer and Copyright Details
Australian Federal Police Legislation Amendment Bill
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)
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
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
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
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
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
- targeting illicit drug trafficking, organised crime, serious
fraud against the Commonwealth, money laundering and the
interception of assets involved in or derived from these
- 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.
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
Courts in this country have often observed that
members of our police forces are both engaged in a very distinctive
form of public service and belong to organisations possessing
distinctively hierarchical structures. Loyalty and obedience -
manifest in oaths of office and statutory and common law duties to
obey lawful orders - are characteristics of their service as are
hierarchy and discipline ...(24)
The Bill specifies what are called the
Commissioner's command powers and also separates those powers from
the Commissioner's powers as an employer.
Constitution, functions and powers of the
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
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
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
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
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
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:
abolishes the statutory fixed term appointment
regime and repeals the provisions of the Act which were necessary
to support this statutory regime. The Commissioner, like any other
employer, can engage employees for a continuous period or a fixed
period on terms specified on engagement and provided by industrial
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
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
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
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
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
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
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.
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
The Commissioner is empowered to determine the
duties of an AFP employee and where those duties are to be
performed (new section 40H).
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.
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.
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
The Explanatory Memorandum records that
... are collected by the Commissioner for
probity and discipline reasons. The [new] section may be used to
require periodic (ie quarterly) returns of financial
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:
Phase 1, to be introduced (as it was) on 1 March
1997, dealt with voluntary targeted testing, "reasonable suspicion
testing and applicant screening testing. Phase 2, to be introduced
in 1998/99, was to add mandatory random testing to these.(36)
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
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
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].
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
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
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
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 police force must accept a curtailment
of freedoms which other public sector employees enjoy.
The need for a disciplined force brings with it,
therefore, the need for the Commissioner as commander of a
disciplined force to have certain command powers. These powers do
not derive from the employer / employee relationship. They are,
therefore, not subject to the WR Act.
Although most of the Commissioner's command
powers are not subject to the WR Act, where the exercise of a
command power amounts to a decision made under an enactment, they
are subject to administrative review.(40)
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:
The effectiveness of the police in protecting
the community rests heavily upon the community's confidence in the
integrity of the members of the police force, upon their assiduous
performance of duty and upon the judicious exercise of their
powers. Internal disciplinary authority over members of the police
force is a means -the primary and usual means - of ensuring that
individual police officers do not jeopardise public confidence by
their conduct, nor neglect the performance of their police duty,
nor abuse their powers. The purpose of police discipline is the
maintenance of public confidence in the police force, of the
self-esteem of police officers and of efficiency.(43)
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:
That curtailment may not differ in kind from
that experienced by others engaged in public office or employment
but it can differ in degree because of the significance and
sensitivity of the policing function itself.(44)
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
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.
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
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
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
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
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
Item 35 enables the
Governor-General to make regulations dealing with transitional or
savings matters in relation to the amendments made by Schedules 1
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
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:
In one sense these provisions may be seen as
simply forming part of the conditions of employment of employees
and special members of the Australian Federal Police. They do not
apply to members of the public generally, and represent an attempt
to reconcile the competing interests of obtaining information and
protecting individual rights.
However, in another sense, the provisions may be
seen as creating a system of control which differs markedly from
that which applies to other public servants, or to employees
generally, or to members of the public. It seems that information
and testing may be compelled whether or not there is a reasonable
suspicion of misconduct (unlike the guidelines considered in
Anderson's case, which was itself concerned with
compulsory drug testing rather than compelling officers to provide
personal financial information).
Secondly, it seems that any AFP employee may be
ordered to provide information, not only officers engaged in active
operations. Finally, it is unclear what protections are available
to AFP employees who consider that these powers may have been
misused, or used inappropriately, by a future Commissioner.
The Committee is conscious of the need to ensure
that the highest standards of probity and conduct apply throughout
the AFP. Nevertheless the Committee is also conscious of the need
not to trespass unduly on the right and liberties of AFP
- 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
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:
[the Bill] fundamentally alters the employment
regime for the AFP
[the Bill] extensively re-writes the AFP
Act-repealing many provisions which set out employment standards
principal issues-accountability of the
Commissioner's decisions; mechanisms of review; repeal of
provisions relating to promotions, maternity leave and other
standards of employment; unclear operation of the Workplace
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
- changes to maternity leave provisions (see page 10 of this
- 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
- 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
- Peter Donovan, Changing the Guard. A history of the
Australian Protective Service, AGPS, Canberra.
- Questions about such matters re-surface from time to time-see
Report of the Review of Commonwealth Law Enforcement
Arrangements, AGPS, Canberra, February 1994.
- Donovan, op.cit.
- Review of Commonwealth Law Enforcement Arrangements, op.cit.
- 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.
- Australian Federal Police Amendment Act 1984 (Cwlth).
- See also Australian Protective Service Act 1987
- 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.
- Other Commonwealth law enforcement bodies include the National
Crime Authority, the Australian Customs Service, the Australian
Securities Commission and the Australian Transaction Reports and
- Australian Federal Police, Annual Report 1998-99.
- Section 6, Principal Act.
- Annual Report, op.cit.
- Regulation 7.
- Regulations 3 & 4, Australian Federal Police Regulations.
- Regulation 5.
- Part V.
- Sections 12B-12L and Part VA respectively.
- Annual Report, op.cit., pp. 79-80.
- (1997) 148 ALR 633.
- (1997) 148 ALR 633 at 654.
- (1997) 148 ALR 633 at 646.
- Subsection 13(1).
- Subsection 13(2).
- Subsections 13(3) & (5).
- Section 14.
- Page 1.
- 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.
- It is likely that regulations will be made.
- Regulations 20-22.
- Page 19.
- Regulation 11.
- Anderson v. Sullivan (1997) 148 ALR 633 at 636 per
- Anderson v. Sullivan (1997) 148 ALR 633 at 636 per
- Annual Report, op.cit.
- Section 36A is part of Part V of the Principal Act which is
repealed by item 46 of the Bill.
- That is, the Commissioner's managerial prerogatives.
- Pages 14-15.
- (1985) 156 CLR 397.
- (1997) 148 ALR 633.
- (1997) 148 ALR 633 at 646-7.
- (1997) 148 ALR 633 at 647.
- Under subsection 30(1) of the former Act.
- Under subsection 30(2).
- Second Reading Speech, Australian Federal Police
Legislation Amendment Bill 1999, September 1999, p. 11033.
- Senate Standing Committee for the Scrutiny of Bills, Alert
Digest No.16 of 1999, 13 October 1999, pp. 5-6.
- Explanatory Memorandum, p 11 and see, for example, Mr
Bruce Baird MP, House Hansard, 20 October 1999, p. 12041.
- Senate Hansard, 20 October 1999, p. 10062.
3 December 1999
Bills Digest Service
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