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Thursday, 27 May 2004
Page: 29432


Mr VAILE (Minister for Trade) (10:34 AM) —I move:

That this bill be now read a second time.

This bill, the Australian Federal Police and Other Legislation Amendment Bill 2004, contains amendments to the Australian Federal Police Act 1979 and the Crimes Act 1914.

The bill represents the final stage of the integration of the Australian Protective Service into the Australian Federal Police.

It will also enable the Australian Federal Police to access Commonwealth investigative powers when investigating state offences which have a federal aspect.

The bill implements the legislative aspect of resolution 16 of the April 2002 Leaders Summit on Terrorism and Multijurisdictional Crime.

The Australian Protective Service was established by the Australian Protective Service Act 1987 and is the Commonwealth's pre-eminent provider of protective security services.

Protective service officers provide a first response security role at airports, diplomatic and consular premises, Defence establishments and other Commonwealth buildings.

After the devastating events of 2001, the government determined that the Australian Protective Service should transfer from the Attorney-General's Department to the Australian Federal Police.

Stage 1 of that transfer happened on 1 July 2002 when legal and financial responsibility was transferred to the Australian Federal Police.

The employment framework of the Australian Protective Service was not affected by stage 1 and the Australian Protective Service and Australian Federal Police have continued to operate under separate legislative and employment arrangements.

The Australian Federal Police Act 1979 sets out the functions of the Australian Federal Police, and the powers and duties of AFP employees.

The Australian Protective Service Act 1987 sets out the functions of the Australian Protective Service, and the powers and duties of protective service officers and special protective service officers.

In addition, Australian Protective Service employees are Public Service employees within the meaning of the Public Service Act 1999.

The bill will create a new category of employee (that is, protective service officer) in the Australian Federal Police Act and include the protective service function of protective service officers as a function of the Australian Federal Police.

The Australian Protective Service Act will be repealed.

The transfer of Australian Protective Service employees to the Australian Federal Police will be effected by section 72 of the Public Service Act 1999, which provides that the Public Service Commissioner may determine that Public Service employees cease to be Public Service employees, and become employees of a specified Commonwealth authority.

Australian Protective Service employees transferred to the Australian Federal Police will be entitled to remuneration and other conditions of employment no less favourable than those which applied under existing industrial instruments immediately before the transfer.

Protective service officers currently carry out functions and exercise powers under a range of other Commonwealth acts.

To ensure protective service officers can continue to carry out such functions and exercise such powers, the bill also makes consequential amendments to those acts.

The bill also implements the resolution made at the April 2002 leaders summit to legislate and develop administrative arrangements to enable the Australian Federal Police to investigate state offences incidental to multijurisdictional crime.

The Standing Committee of Attorneys-General and Australasian Police Ministers Council Joint Working Group on National Investigative Powers recommended that this resolution be implemented by amending Commonwealth legislation to enable the Australian Federal Police to investigate state offences with a federal aspect.

A state offence has a federal aspect if the subject matter of the offence is a subject on which the Australian government has constitutional power to legislate.

A state offence also has a federal aspect where the investigation of that state offence is incidental to an investigation of a federal or territory offence.

When investigating federal crimes such as terrorism, people-smuggling, drug importation and child sex tourism, it can become apparent that state offences may also have been committed.

These measures will allow the Australian Federal Police to investigate the totality of criminal conduct where those state offences have a federal aspect and will address the potential duplication of police resources that arises where otherwise the Australian Federal Police and state police services would need to investigate different aspects of the same criminal conduct.

The Senate made a number of amendments to the bill.

The amendments addressed issues which were raised with the Senate Legal and Constitutional Legislation Committee during its consideration of the bill.

A number of those amendments corrected some minor drafting errors identified in the Bills Digest.

The bulk of the amendments were to amendments in schedule 3 of the bill to finetune those amendments to ensure the Australian Federal Police can use all its existing powers to investigate state offences with a federal aspect.

The government has also accepted the recommendations made by the Senate Legal and Constitutional Legislation Committee in its report on this bill.

These recommendations were that the bill should be agreed to, that advice be sought on whether there would be any legal obstacles to the conferral of jurisdiction on the AFP Board of Reference to settle disputes over the remuneration and conditions of Australian Protective Service transferees, and that the Australian Federal Police report back to the committee within 12 months on the progress of the integration.

After examining this issue, it became clear that the AFP Board of Reference would have no application to Australian Protective Service transferees because the board was provided for under the current AFP certified agreement.

However, advice received by the Australian Federal Police following consultation before the Australian Industrial Relations Commission has also made it clear that the disputes procedures set out in the Workplace Relations Act will apply in their entirety to Australian Protective Service transferees.

The non-government parties made one amendment to the bill in the Senate.

The amendment provides that an expression of an `honestly held opinion' by the commissioner or a deputy commissioner does not constitute misbehaviour under the AFP Act `if the commissioner or deputy commissioner believes that it is in the public interest to communicate that opinion, whether publicly or privately'.

This amendment was opposed by the government because it would create a statutory exemption to the grounds for termination for misbehaviour based on the purely subjective belief of the person expressing the opinion.

An exemption such as this could create potentially serious problems, for example, if the commissioner or a deputy commissioner expressed a racist or prejudicial opinion that they honestly held and believed was in the public interest, but would be inappropriate and in some cases unlawful.

In such a case, the person might be in breach of state or Commonwealth legislation dealing with racial vilification, and could be prosecuted for an offence under those laws.

However, these prosecutions are time consuming, and the ability of the government to dismiss the commissioner or a deputy commissioner for misbehaviour does not depend on whether the misbehaviour has resulted in a conviction.

The complete integration of the Australian Federal Police and the Australian Protective Service, and the ability for the Australian Federal Police to investigate state offences incidental to multijurisdictional crime, are important steps in the government's efforts to protect Australians from terrorist attacks and consolidate and enhance national security initiatives. I present the explanatory memorandum.