Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Wednesday, 24 August 1994
Page: 200

Senator SPINDLER (12.37 p.m.) —The Complaints (Australian Federal Police) Amendment Bill 1994 amends the Complaints (Australian Federal Police) Act 1981, which governs the handling of complaints made by the public or by AFP members, including disciplinary measures consequent upon a complaint, and also disciplinary appeals. On the point raised by Senator Vanstone and the issues raised by the Law Council of Australia, the Australian Democrats also look forward to the government's response.

  The amendments in the bill arise out of an interdepartmental working group established in 1991. The working group produced a series of amendments that do not so much alter the policy principles of the act as eliminate certain anomalies and meet practical concerns arising out of the operation of the act since its commencement.

  The first of the major amendments is to extend the act's coverage to include non-sworn AFP staff. This is necessary, given the increasing interrelationship of the duties of members and staff members. It is understood, however, that complaints are always likely to be more common in relation to those exercising police powers.

  The second of the major amendments concerns the creation of two new offences. The first offence is that of providing what the offender knows to be materially false information to an AFP appointee in relation to a complaint or action taken by an AFP appointee. The second offence relates to the victimisation of a complainant or a person assisting in the investigation of a complaint.

  The third amendment gives the ombudsman the capacity to investigate on his or her own motion action by a member or staff member of the AFP. Currently, under the Ombudsman's Act 1976, the ombudsman can initiate investigations of administrative actions on his or her own motion. However, the principal act does not make the equivalent provision for the investigation of complaints against AFP members. This amendment will rectify this anomaly and is particularly welcomed by the Australian Democrats.

  I might refer briefly to the events which gave rise to the working party and which produced, amongst others, this particular amendment. Those events consisted of the complaints against police behaviour at the AIDEX demonstration. I had occasion to channel those complaints to the ombudsman. I place on record my appreciation for the constructive process of consultation that has been carried out since then between the AFP and the ombudsman's office with the result that these amendments are now in place.

  The fourth of the major amendments makes evidence obtained by the ombudsman in the course of an investigation admissible in disciplinary hearings. The proposed amendment will put the ombudsman on the level with the investigative division in this regard by removing a restriction on admissibility of evidence which undermines the position of the ombudsman as the investigator of last resort.

  The final of the major amendments abolishes the requirement that hearings of complaint based disciplinary charges be held before the disciplinary tribunal where the appointee charged pleads guilty. In the working group process the AFP proposed that section 67(1) of the principal act should be amended to allow the AFP commissioner to determine cases arising from complaints where an AFP member pleads guilty. The AFP argued that the present procedures, which require that disciplinary proceedings arising from complaints be referred to the tribunal for rehearing, even where the accused pleads guilty, involve unnecessary delays and waste the time of the tribunal.

  The Attorney-General's Department, while accepting that there were problems with delay, argued that the present procedures had been consciously adopted in the legislation to ensure that the results of complaints investigations were sufficiently publicised and that the `concept of police judging police in complaints matters has been criticised by the Royal Commission into Aboriginal Deaths in Custody so that any attempt to expand the police role would be politically inopportune at present'. The working group therefore recommended that the principal act not be amended as proposed by the AFP.

  However, I note that in clause 16 the government has chosen to accept the AFP's arguments to the extent that it is a matter to be determined by the AFP commissioner as to whether the commissioner may deal with the matter or refer the undisputed charge to the tribunal. Significantly, however, in this situation, if the ombudsman does not consent in writing to the commissioner's decision the Attorney-General is required to direct how the proceeding will be dealt with. While we do not intend to oppose this provision, we note for the record the need to monitor its practical effectiveness and that it should be reviewed at some point in the future, if necessary.

  I repeat that the Australian Democrats, in general, welcome these amendments and will support the bill, subject to investigation of the matters raised by the Law Council of Australia.