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

Schedule 3 Consequential amendments

   

Administrative Decisions (Judicial Review) Act 1977

1  Paragraph 10(1)(b)

Omit “and subsection 24(2A) of the Complaints (Australian Federal Police) Act 1981 ”, substitute “and section 40TF of the Australian Federal Police Act 1979 ”.

Australian Crime Commission Act 2002

2  Schedule 1

Omit:

Complaints (Australian Federal Police) Act 1981 , sections 41 and 87

Australian Federal Police Act 1979

3  Subsection 17(4B)

Repeal the subsection.

4  Section 39 (note)

Repeal the note.

5  Section 40 (note)

Repeal the note.

6  Subsection 40A(2)

Omit “, other than proceedings for a disciplinary offence under the Australian Federal Police (Discipline) Regulations”.

7  Subsection 40G(2)

Omit “discipline”, substitute “AFP professional standards”.

Note:       The heading to subsection 40G(2) is altered by omitting “ Discipline ” and substituting “ AFP professional standards ”.

8  Subsection 40L(3) (note)

Repeal the note.

9  Subsection 40L(6)

Omit “, other than proceedings for a disciplinary offence under the Australian Federal Police (Discipline) Regulations”.

10  Section 41 (definition of Complaints Act )

Repeal the definition.

11  Section 41 (definition of Disciplinary Tribunal )

Repeal the definition.

12  Section 41 (definition of Federal Court )

Repeal the definition.

13  Section 41 (definition of relevant disciplinary offence )

Repeal the definition.

14  Division 3 of Part VA

Repeal the Division.

15  Section 52

Repeal the section.

16  Subsection 54(1)

Omit “, or under subsection 49(3),”.

Note:       The heading to section 54 is altered by omitting “ , 49 ”.

17  Subsection 54(2)

Omit “, or under subsection 49(3),”.

18  Subsection 54(2)

Omit “, or the requirements of subsection 49(3), as the case may be, are”, substitute “is”.

19  Subsection 54(3)

Omit “, 49(2)”.

20  Subsection 54A(1)

Omit “, 49(2)”.

21  Subsection 54A(2)

Omit “, 49(2)”.

22  Paragraph 69B(1)(b)

Repeal the paragraph, substitute:

                     (b)  a matter covered by Part V or any action taken in relation to a matter covered by that Part;

23  Paragraph 70(b)

Omit “other than disciplinary offences”.

24  Paragraph 70(i)

Repeal the paragraph, substitute:

                      (i)  compliance by AFP appointees with AFP professional standards; and

Australian Security Intelligence Organisation Act 1979

25  Subsection 34D(4) (note 2)

Omit “and the Ombudsman”, substitute “, the Ombudsman, the Commissioner of the Australian Federal Police and a person referred to in paragraph 40SB(3)(b) of the Australian Federal Police Act 1979 ”.

26  Subparagraph 34E(1)(e)(ii)

Repeal the subparagraph, substitute:

                             (ii)  to the Ombudsman under the Ombudsman Act 1976 in relation to the Australian Federal Police;

27  After paragraph 34E(1)(e)

Insert:

                    (ea)  the person’s right to give information orally or in writing, under Part V of the Australian Federal Police Act 1981 , to a person referred to in subsection 40SA(1) of that Act in relation to the Australian Federal Police;

28  Paragraphs 34F(9)(b) and (c)

Repeal the paragraphs, substitute:

                     (b)  subsection (8) does not affect the operation of sections 10 and 13 of the Inspector-General of Intelligence and Security Act 1986 in relation to contact between the person and the Inspector-General of Intelligence and Security; and

                     (c)  anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Inspector-General of Intelligence and Security to make a complaint orally under the sections referred to in paragraph (b) if the person requests them; and

                     (d)  subsection (8) does not affect the operation of section 7 of the Ombudsman Act 1976 in relation to contact between the person and the Ombudsman; and

                     (e)  anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Ombudsman to make a complaint orally under the section referred to in paragraph (d) if the person requests them; and

                      (f)  subsection (8) does not affect the operation of section 40SB of the Australian Federal Police Act 1979 in relation to contact between the person and a person referred to in paragraph 40SB(3)(b) of that Act; and

                     (g)  anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Commissioner of the Australian Federal Police to give information orally under the section referred to in paragraph (f) if the person requests them.

29  Paragraph 34NB(4)(b)

Omit “paragraph 34(9)(c)”, substitute “paragraph 34(9)(c), (e) or (g)”.

30  Section 34NC

Repeal the section, substitute:

34NC   Complaints and information about contravention of procedural statement

             (1)  Contravention of the written statement of procedures mentioned in section 34C of this Act may be the subject of:

                     (a)  a complaint to the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986 ; or

                     (b)  a complaint to the Ombudsman under the Ombudsman Act 1976 ; or

                     (c)  information given under Division 2 of Part V of the Australian Federal Police Act 1979 to a person referred to in subsection 40SA(1) of that Act.

             (2)  This section does not limit:

                     (a)  the subjects of complaint under:

                              (i)  the Inspector-General of Intelligence and Security Act 1986 ; or

                             (ii)  the Ombudsman Act 1976 ; or

                     (b)  the subject of information given under Division 2 of Part V of the Australian Federal Police Act 1979 .

31  Subsection 34T(2)

Repeal the subsection, substitute:

             (2)  This Division does not affect a function or power of the Ombudsman under the Ombudsman Act 1976 in relation to the Australian Federal Police.

             (3)  This Division does not affect a function or power of a person under Part V of the Australian Federal Police Act 1979 .

32  Subsection 34VAA(5) (subparagraph (a)(iv) of the definition of permitted disclosure )

Repeal the subparagraph, substitute:

                            (iv)  exercising a power (including a power to make a complaint or to give information), or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986 , the Ombudsman Act 1976 or Part V of the Australian Federal Police Act 1979 ;

Crimes Act 1914

33  Subparagraph 3L(1B)(b)(iii)

Omit “the Complaints (Australian Federal Police) Act 1981 ”, substitute “the Ombudsman Act 1976 in relation to the Australian Federal Police”.

34  At the end of paragraph 3L(1B)(b)

Add:

                     ; or (iv)  investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979 ) under Part V of that Act;

35  After paragraph 23YO(3)(i)

Insert:

                    (ia)  for the purpose of dealing with or investigating, under Part V or the Australian Federal Police Act 1979 , an AFP conduct or practices issue (within the meaning of that Act) that relates to the way in which the procedure is carried out;

Criminal Code Act 1995

36  Paragraph 104.29(2)(f) of the Criminal Code

Repeal the paragraph, substitute:

                      (f)  particulars of:

                              (i)  any complaints made or referred to the Commonwealth Ombudsman that related to control orders; and

                             (ii)  any information given under section 40SA of the Australian Federal Police Act 1979 that related to control orders and raised an AFP conduct or practices issue (within the meaning of that Act).

37  Paragraph 105.28(2)(e) of the Criminal Code

Repeal the paragraph, substitute:

                     (e)  any right the person has to make a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to:

                              (i)  the application for, or the making of, the preventative detention order; or

                             (ii)  the treatment of the person by an AFP member in connection with the person’s detention under the order; and

                    (ea)  any right the person has to give information under section 40SA of the Australian Federal Police Act 1979 in relation to:

                              (i)  the application for, or the making of, the preventative detention order; or

                             (ii)  the treatment of the person by an AFP member in connection with the person’s detention under the order; and

38  Paragraph 105.29(2)(d) of the Criminal Code

Repeal the paragraph, substitute:

                     (d)  any right the person has to make a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to:

                              (i)  the application for the continued order; or

                             (ii)  the treatment of the person by an AFP member in connection with the person’s detention under the continued order; and

                   (da)  any right the person has to give information under section 40SA of the Australian Federal Police Act 1979 in relation to:

                              (i)  the application for the continued order; or

                             (ii)  the treatment of the person by an AFP member in connection with the person’s detention under the continued order; and

39  Subsection 105.36(1) of the Criminal Code

Repeal the subsection, substitute:

             (1)  The person being detained is entitled to contact:

                     (a)  the Commonwealth Ombudsman in accordance with subsections 7(3) to (5) of the Ombudsman Act 1976 ; or

                     (b)  a person referred to in subsection 40SA(1) of the Australian Federal Police Act 1979 in accordance with section 40SB of that Act.

Note 1:       Subsections 7(3) to (5) of the Ombudsman Act 1976 provide for the manner in which a person who is in custody may make a complaint to the Commonwealth Ombudsman under that Act.

Note 2:       Section 40SB of the Australian Federal Police Act 1979 provides for the manner in which a person who is in custody may give information under section 40SA of that Act.

40  Paragraph 105.37(1)(c) of the Criminal Code

Repeal the paragraph, substitute:

                     (c)  arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to:

                              (i)  the application for, or the making of, the preventative detention order; or

                             (ii)  the treatment of the person by an AFP member in connection with the person’s detention under the order; or

                    (ca)  arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, the giving of information under section 40SA of the Australian Federal Police Act 1979 in relation to:

                              (i)  the application for, or the making of, the preventative detention order; or

                             (ii)  the treatment of the person by an AFP member in connection with the person’s detention under the order; or

41  Subsection 105.38(5) of the Criminal Code

After “(c),”, insert “(ca),”.

42  Subparagraph 105.41(2)(d)(ii) of the Criminal Code

Repeal the subparagraph, substitute:

                             (ii)  a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to the application for, or making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

                           (iia)  the giving of information under section 40SA of the Australian Federal Police Act 1979 in relation to the application for, or making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

43  Subparagraph 105.41(3)(e)(i) of the Criminal Code

Repeal the subparagraph, substitute:

                              (i)  a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to the application for, or the making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

                            (ia)  the giving of information under section 40SA of the Australian Federal Police Act 1979 in relation to the application for, or the making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

44  Paragraph 105.47(2)(d) of the Criminal Code

Repeal the paragraph, substitute:

                     (d)  particulars of:

                              (i)  any complaints made or referred to the Commonwealth Ombudsman during the year that related to the detention of a person under a preventative detention order; and

                             (ii)  any information given under section 40SA of the Australian Federal Police Act 1979 during the year that related to the detention of a person under a preventative detention order and raised an AFP conduct or practices issue (within the meaning of that Act);

45  Section 105.48 of the Criminal Code

Repeal the section, substitute:

105.48   Certain functions and powers not affected

                   This Division does not affect:

                     (a)  a function or power of the Commonwealth Ombudsman under the Ombudsman Act 1976 ; or

                     (b)  a function or power of a person under Part V of the Australian Federal Police Act 1979 .

Ombudsman Act 1976

46  Subsection 3(1)

Insert:

AFP appointee has the same meaning as in the Australian Federal Police Act 1979 .

47  Subsection 3(1)

Insert:

AFP Commissioner means the Commissioner within the meaning of the Australian Federal Police Act 1979 .

48  Subsection 3(1)

Insert:

AFP conduct issue has the same meaning as in the Australian Federal Police Act 1979 .

49  Subsection 3(1)

Insert:

AFP practices issue has the same meaning as in the Australian Federal Police Act 1979 .

50  Subsection 3(10)

Omit “a member or special member of the Australian Federal Police”, substitute “an AFP appointee”.

51  At the end of section 4

Add:

             (5)  The Commonwealth Ombudsman, in performing his or her functions in relation to the Australian Federal Police, may, if he or she so chooses, be called the Law Enforcement Ombudsman.

52  Subsection 5(4)

Repeal the subsection, substitute:

             (4)  Paragraph (2)(d) does not prevent the Ombudsman from investigating action taken by an AFP appointee, or by any other person, with respect to information that:

                     (a)  is given to the AFP appointee; and

                     (b)  raises an AFP conduct issue or AFP practices issue; and

                     (c)  relates to action taken by another AFP appointee.

53  At the end of section 6

Add:

           (20)  If the Ombudsman forms the opinion:

                     (a)  that a complaint includes information about an AFP conduct issue or an AFP practices issue; and

                     (b)  that the information could have been given under section 40SA of the Australian Federal Police Act 1979 and the issue could be more conveniently or effectively dealt with under Part V of that Act;

the Ombudsman may decide not to investigate the complaint, or not to investigate the complaint further, as the case may be, and to give the information to the AFP Commissioner under that section of that Act.

           (21)  If the Ombudsman makes a decision under subsection (20), the Ombudsman must:

                     (a)  give the information to the AFP Commissioner under section 40SA of the Australian Federal Police Act 1979 as soon as is reasonably practicable; and

                     (b)  give the AFP Commissioner any information or documents relating to the complaint that are in the possession, or under the control, of the Ombudsman; and

                     (c)  as soon as is reasonably practicable, give the complainant written notice that the complaint has been transferred to the AFP Commissioner to be dealt with under that Act.

54  At the end of section 8

Add:

Arrangements for having police officers assist Ombudsman in relation to investigation

           (12)  Whenever it becomes necessary or desirable for the Ombudsman to use persons with police training in connection with his or her investigation of a complaint about an AFP conduct issue or AFP practices issue, the Ombudsman may, and must in so far as it is practicable to do so, use, in connection with that investigation:

                     (a)  an AFP appointee who is made available to him or her by the AFP Commissioner for the purposes of the investigation; or

                     (b)  a member of the police force of a State whom the police force of the State agrees to make available to the Ombudsman, for the purposes of the investigation, under arrangements made by the AFP Commissioner.

55  After subsection 8A(1)

Insert:

          (1A)  The Commonwealth Ombudsman may, if he or she thinks fit, make an arrangement with the Ombudsman of a State, or the Ombudsmen of 2 or more States, for and in relation to the investigation, by any one or more of the Ombudsmen, of action to which subsection (1B), (1C) or (1D) applies.

          (1B)  This subsection applies to action that:

                     (a)  gives rise to an AFP conduct issue or AFP practices issue; and

                     (b)  involves:

                              (i)  an AFP conduct issue that relates to a member of the police force of a State; or

                             (ii)  action taken by the police force of a State; or

                            (iii)  action taken by a Department of a State or by an authority of a State.

          (1C)  This subsection applies to action taken by a body if the body:

                     (a)  is established jointly, or administered jointly, by the Commonwealth and one or more States; and

                     (b)  includes at least one AFP appointee and a member or members of the police force of a State or the police forces of 2 or more States.

          (1D)  This subsection applies to action taken by a body referred to in subsection (1C) together with action taken by:

                     (a)  by an AFP appointee or by the Australian Federal Police; or

                     (b)  by a member of the police force of a State; or

                     (c)  by the police force of a State; or

                     (d)  by a Department of a State or by an authority of a State.

56  Subsection 8A(2)

After “subsection (1)”, insert “or (1B)”.

57  Subsection 8A(3)

After “subsection (1)”, insert “or (1A)”.

58  Subsection 8A(8)

After “subsection (1)”, insert “or (1A)”.

59  Before section 9

Insert:

8D   Investigations by Ombudsman and Australian Federal Police

             (1)  The Ombudsman may, if he or she thinks fit, make an arrangement with the AFP Commissioner for:

                     (a)  a category 3 conduct issue; or

                     (b)  an AFP practices issue;

to be dealt with jointly by the Ombudsman and the Australian Federal Police.

             (2)  The arrangement may relate to:

                     (a)  a particular category 3 conduct issue or issues; or

                     (b)  a series of related category 3 conduct issues; or

                     (c)  a particular AFP practices issue or issues; or

                     (d)  a series of related AFP practices issues.

             (3)  The Ombudsman may arrange with the AFP Commissioner for the variation or revocation of the arrangement.

             (4)  The arrangement, or the variation or revocation of the arrangement, must be in writing.

             (5)  Nothing in this section affects the powers or duties of the Ombudsman under any other provision of this Act.

             (6)  In this section:

category 3 conduct issue has the same meaning as in the Australian Federal Police Act 1979 .

60  At the end of subsection 33(1)

Add “or Division 7 of Part V of the Australian Federal Police Act 1979 ”.

61  At the end of subsection 34(1)

Add:

             ; and (c)  all or any of his or her powers under Division 7 of Part V of the Australian Federal Police Act 1979 .

62  At the end of subsection 35(1)

Add:

               ; or (e)  a person who is made available to the Ombudsman as mentioned in subsection 8(12).

63  Subsection 35(2)

After “of this Act”, insert “or under Division 7 of Part V of the Australian Federal Police Act 1979 ”.

64  At the end of subsection 35(8)

Add “or under Division 7 of Part V of the Australian Federal Police Act 1979 ”.

Witness Protection Act 1994

65  Subsection 12(2)

Omit all the words after “for the purposes”, substitute:

of:

                     (a)  an investigation by the Ombudsman under the Ombudsman Act 1976 ; or

                     (b)  an investigation under Part V of the Australian Federal Police Act 1979 .

66  Subsection 22(2)

Omit “or the Complaints (Australian Federal Police) Act 1981 ”.