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

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2004-2005-2006









THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA









HOUSE OF REPRESENTATIVES



























LAW ENFORCEMENT (AFP PROFESSIONAL STANDARDS AND RELATED MEASURES) BILL 2006







SUPPLEMENTARY EXPLANATORY MEMORANDUM







Amendments and New Clauses to be Moved on Behalf of the Government

















(Circulated by authority of the Minister for Justice and Customs, Senator

the Honourable Chris Ellison)

LAW ENFORCEMENT (AFP PROFESSIONAL STANDARDS AND RELATED MEASURES) BILL 2006



 

OUTLINE

 

This Bill amends the Australian Federal Police Act 1979 (the Act) to insert a new part to modernise complaints and professional standards regime within the Australian Federal Police. The new part implements a contemporary managerial approach to AFP complaints and professional conduct issues. The Bill also repeals the Complaints (Australian Federal Police) Act 1981 (the Complaints Act) and amends the Ombudsman Act 1976 .

 

The new professional standards regime does the following:

 

·           provides for a graduated system of categories of conduct to allow for minor complaints to be dealt with by managers in the context of performance agreements

·           provides that more serious categories of complaints are investigated by the unit established within the AFP to deal with professional standards concerns

 

The Bill confers a revised role for the Ombudsman in relation to professional standards. This involves:

 

·           ability to jointly determine, with the AFP Commissioner, the kinds of issues that belong to various categories of conduct

·           entitled under the Bill to have access to the records that are kept in relation to AFP conduct and practices issues

·           conduct annual reviews and ad hoc reviews of the operation of the new part.

The proposed amendments clarify the operation of the Bill taking into account the report of the Senate Legal and Constitutional Legislation Committee (Senate Committee) in relation to the Bill. The Government amendments will ensure that existing provisions of the AFP Act reflect the application of the new professional standards regime to all AFP appointees, clarify the power of the Commissioner to revoke overseas posting of AFP appointees, provide wider options for oversight of the professional standards unit, encourage an early determination of the categories of conduct around which the new professional standards regime is constructed, clarify the relationship between the AFP Act and the Workplace Relations Act under the new professional standards regime and amend the ASIO Act (in both its current version and the amended version to be established by the ASIO Legislation Amendment Bill 2006) to reflect the repeal of the Complaints Act and the new regime to be put in place by this Bill.

Financial Impact Statement

The Government amendments will have no financial impact.

 

 

 

 

 

 

 

 

 

 

 

ABBREVIATIONS

 

The following abbreviations are used in this supplementary explanatory memorandum:

 

ACLEI                                                The Australian Commission for Law Enforcement Integrity

 

AFP                                         The Australian Federal Police

 

AFP Act                                  The Australian Federal Police Act 1979

ASIO Act                               The Australian Security Intelligence Organisation Act 1979

ASIO Bill                                The ASIO Legislation Amendment Bill 2006

Complaints Act                       The Complaints (Australian Federal Police) Act 1981

Discipline Regulations            The Australian Federal Police (Discipline) Regulations 1979

IGIS Act                                 The Inspector-General of Intelligence and Security Act 1986

 

LEIC Bill                                The Law Enforcement Integrity Commissioner Bill 2006

 

Ombudsman Act                     The Ombudsman Act 1976

 

Senate Committee                   The Senate Legal and Constitutional Legislation Committee

Workplace Relations Act        The Workplace Relations Act 1996

 

A reference in this Explanatory Memorandum to a numbered recommendation of the Senate Committee is a reference to a recommendation made in the report of the Senate Committee’s review of the provisions of the Law Enforcement Integrity Commissioner Bill 2006, the Law Enforcement Integrity Commissioner (Consequential Amendments) Bill 2006 and the Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006, tabled on 11 May 2006.

 



NOTES ON CLAUSES

Amendment 1:  Clause 2 (Commencement)

The amendment will insert two additional rows in the commencement information table in clause 2 of the Bill to provide for the commencement of Parts 1 and 2 of the new Schedule 3A to the Bill, which will be inserted by amendment 12.  The effect of, and reasons for, these commencement provisions are set out in the notes on amendments 11 and 12.

Amendments 2 to 5 and 9:  Schedule 1, after item 27 (Application to AFP appointees)

These amendments will insert new items 27A to 27D in Schedule 1 to the Bill.  These items will amend sections 39 (Compliance with Commissioner’s orders), 40 (Compliance with specific directions, instructions or orders) and 40A (Self-incrimination) of the AFP Act.  Each amendment effectively substitutes a reference to an AFP appointee for a reference to an AFP employee, a special member or a special protective service officer.  A definition of ‘AFP appointee’ will be inserted in subsection 4(1) of the AFP Act by item 2 of Schedule 1 to the Bill.  In addition to AFP employees, special members and special protective service officers, the definition includes a Deputy Commissioner, a person engaged overseas under section 69A of the AFP Act, a consultant or contractor who is designated by the Commissioner as an AFP appointee and a person seconded to the AFP under section 69D of the AFP Act. 

These amendments will bring the relevant section s of the AFP Act into line with the intended broader coverage of the new professional standards regime established by the Bill, which covers all AFP appointees.

Amendment 9 is consequential to amendments 2 and 3.  These amendments make the required change to sections 39 and 40 of the AFP Act by repealing the existing section and substituting a new section.  There is a note appended to each of the current sections indicating, in effect, that non-compliance is dealt with under the Discipline Regulations.  As these regulations, and the authority for making them, are to be repealed (see item 24 of Schedule 3 to the Bill), the current items 4 and 5 of Schedule 3 repeal the notes to section 39 and 40.  The proposed new sections to be substituted by amendments 2 and 3 will not include these notes, so items 3 and 4 of Schedule 3 are no longer required.  Amendment 9 will therefore omit items 4 and 5 of Schedule 3.

Amendment 6:  Schedule 1, after proposed item 27D (Revoking determinations)

This amendment will insert a new item 27E in Schedule 1 to the Bill.  Item 27E would insert an new subparagraph 40H(4) in the AFP Act.  Under Subsection 40H(1) the Commissioner may make a determination that an AFP employee is to perform duties at a place outside Australia.  Proposed new subsection (4) would provide expressly that the Commissioner may at any time revoke a determination made under subsection (1).  This amendment should resolve any doubt that the Commissioner has the power to recall an AFP employee from an overseas posting at any time, despite any indication in the initial determination that the posting was intended to last for a specified period.

Amendment 7:  Schedule 1, item 28 (Constitution of unit undertaking professional standards functions)

This amendment will amend proposed new subsection 40RE(3), which would be inserted in the AFP Act by item 28 of Schedule 1 to the Bill.  Proposed new subsection 40RE(3) provides that the head of the AFP professional standards unit is responsible directly to the AFP Commissioner or, if the Commissioner so directs, to a specified Deputy Commissioner.  Amendment 7 will provide that the Commissioner may direct that the head of the unit is directly responsible to either a Deputy Commissioner or a senior executive AFP employee of equivalent level.  This change will provide administrative flexibility in an organisation where non-sworn staff now serve at all levels.  It also reflects the fact that the regime administered by the professional standards unit governs the conduct of all AFP appointees, not only sworn members.

Amendment 8:  Schedule 1, at the end of the Schedule (Categorising AFP conduct issues)

This amendment will insert a new item 30 at the end of Schedule 1 to the Bill.  The new item will impose an obligation on the AFP Commissioner and the Commonwealth Ombudsman to try to make a determination under proposed new subsection 40RM(1) of the AFP Act within three months after the commencement of the Schedule. 

Proposed new subsection 40RM(1) would be inserted by item 28 of Schedule 1.  It provides that, subject to proposed new sections 40RN, 40RO and 40RP of the AFP Act (which outline the broad type of conduct that may be included in each category), the AFP Commissioner and the Ombudsman may jointly determine the particular kinds of conduct that are to be category 1, 2 and 3 conduct for the purposes of the Bill.  Unless such a determination is made, the AFP will not be able to deal with any conduct issues under the informal local procedures to be established under proposed new Part V Division 3 Subdivision C.  This would frustrate the key objective of the Bill.

This amendment implements in part the Senate Committee’s recommendation 12.

Amendment 10:  Schedule 3, item 22 (Operation of Workplace Relations Act )

Paragraph 69B(1)(b) of the AFP Act provides that the Workplace Relations Act (other than Division 9 of Part 9 or Part 16) does not apply in relation to the discipline of AFP employees.  Item 22 of Schedule 3 to the Bill would substitute a new paragraph (b) to specifying a matter covered by the proposed new Part V of the Act or any action taken in relation to such a matter. 

Amendment 10 will amend item 22 by adding words to the proposed new paragraph (b) to clarify that it is not intended to preclude the operation of the Workplace Relations Act in relation to action, under section 28 of the AFP Act, to terminate the employment of an AFP employee, in cases where the action follows an investigation under Part V of the Act, if the Workplace Relations Act would otherwise have applied to the action.  This amendment implements the Senate Committee’s recommendation 14.

This amendment will ensure that the current position on review of action to terminate employment under section 28 is preserved.

Amendments 11 and 12:  Schedule 3, items 25 to 32 and after Schedule 3 (Repeal of Complaints (Australian Federal Police) Act 1981 )

Items 25 to 32 of Schedule 3 to the Bill would amend various provisions of Part III Division 3 (Special powers relating to terrorism offences) of the ASIO Act.  The provisions in question are intended to ensure that persons in custody or detained for questioning under Part III Division 3 are advised of, and entitled to facilities to exercise, their rights to complain about action taken by the AFP, despite a general prohibition on their contacting anyone.  The rights referred to arise under the Complaints Act, which will be repealed by Schedule 2 to this Bill.  The effect of items 25 to 33 would be to replace references to making a complaint to the Ombudsman under the Complaints Act with references to making a complaint to the Ombudsman under the Ombudsman Act or giving information to the Commissioner or an investigator under the proposed new Part V Division 2 of the AFP Act. 

The ASIO Bill will re-enact in amended form all the provisions of Part III Division 3 of the ASIO Act that would be affected by items 25 to 32.  It is not certain whether the ASIO Bill will commence before Schedule 3 of this Bill.

To address this situation, amendment 11 will omit items 25 to 32 from Schedule 3 to the Bill and amendment 12 will insert a new Schedule 3A comprising only amendments to the ASIO Act.  Part 1 (Amendments that may not commence) of Schedule 3A comprises, with some minor variations, the amendments to the ASIO Act omitted by amendment 11.  Part 2 (Amendments contingent on the ASIO Legislation Amendment Act 2006) of Schedule 3A comprises corresponding amendments to provisions that will be inserted into the ASIO Act.

Amendment 1 makes appropriate provision for the commencement of the two Parts of Schedule 3A.  The commencement of Parts 1 and 2 will depend on the dates of commencement of the ASIO Bill and this Bill.  If the ASIO Bill commences before, or at the same time as, Schedules 1 to 3 to this Bill (that is, when section 3 of the LEIC Bill commences), Part 2 of Schedule 3A will commence at the same time as Schedules 1 to 3.  Otherwise, Part 1 of Schedule 3A will commence at that time and Part 2 will commence later, when the ASIO Bill commences.

Schedule 3A Part 1

The new items 1 to 9 of Schedule 3A Part 1 will be identical to items 25 to 32 of Schedule 3 except as indicated below.

Item 1 (formerly Schedule 3, item 25 (subsection 34D(4) (note 2), ASIO Act)

The amended item would omit the reference to the Commissioner of the AFP in the substituted wording of note 2.  This amendment is proposed for consistency with the proposed new paragraph 34F(9)(f) of the ASIO Act, to which it refers.

Item 3 (formerly Schedule 3, item 27 (after paragraph 34E(1)(e), ASIO Act)

The amended version of the proposed new paragraph 34E(1)(ea) would refer to Division 2 of Part V (rather than simply to Part V) of the AFP Act, as the right to give information arises only under Division 2.  This amendment is made for consistency with the proposed new section 34NC of the ASIO Act.

Item 4 (formerly Schedule 3, item 28 (Paragraphs 34F(9)(b) and (c), ASIO Act)

The amended version of these paragraphs would differ in three ways from item 28 of Schedule 3.

The references in proposed new paragraph (c) and (g) to ‘the sections referred to in’ proposed new paragraphs (b) and (f) would be replaced by express references to section 10 of the IGIS Act and proposed new section 40SA of the AFP Act.  This will ensure that the references relate only to provisions that provide for making a complaint or giving information orally.

Additional words would be added to proposed new paragraph (d) to clarify that it is only in relation to complaints about the AFP, not more generally, that the operation of section 7 of the Ombudsman Act is not affected by the restrictions on communication imposed by subsection 34F(8) of the ASIO Act.  This amendment eliminates an expanded operation of subsection (9) that would be created by item 4 of Schedule 3 when it proposes to substitute reference to section 7 of the Ombudsman Act for reference to section 22 of the Complaints Act, which had application only to the AFP.

Item 5 (Note to subsection 34F(9), ASIO Act)

This would be a new item, not corresponding to an item included in Schedule 3.  The note to subsection 34F(9) of the ASIO Act misleadingly refers to ‘the sections referred to in paragraph (b)’ as giving a person an entitlement to facilities for making a written complaint.  In fact, section 10 of the IGIS Act does not give such an entitlement.  The proposed new note would refer to particular sections, so that it refers only to those that do confer such an entitlement.

Schedule 3A Part 2

The new items 10 to 22 of Schedule 3A Part 2 will correspond to items 1 to 9 of Schedule 3A Part 1 as follows:

 

Item in Part 1 and provision affected

Item in Part 2 and provision affected

Item in Part 1 and provision affected

Item in Part 2 and provision affected

1—34D(4) (note 2)

10—34G(5) (note 2)

Nil

17—34R(13)(b)(ii)

2—34E(1)(e)(ii)

11—34J(1)(e)(ii)

6—34NB(4)(b)

18—34ZF(4)(b)

3—34E(1)(e)

12—34J(1)(e)

7—34NC

19—34ZG

Nil

13-15—34K(9)

8—34T(2)

20—34ZN(2)

4—34F(9)(b) & (c)

16—34K(11)(b) & (d)

9—34VAA(5)

21—34ZS(5)

5—34F(9) (note)

16—34K(11) (note)

Nil

22—34ZX(5)(a)

The following items in Part 2 vary in substance from those on Part 1.

Items 13-15, 17 and 22 (subsection 34K(9), ASIO Act)

All of these items are consequential to item 12, which will insert a new paragraph (ea) after the renumbered paragraph 34J(1)(e) to provide that a prescribed authority must inform a person who appears before them of the person’s right to give information orally or in writing under Part V Division 2 of the AFP Act.  This complements the requirement of paragraph (e) that the person be informed of the right to complain to the Ombudsman. 

Subsection 34K(9) is a new provision that would be inserted in the ASIO Act by the ASIO Bill.  It provides that a person appearing before a prescribed authority for questioning may ask to make an oral or written complaint of the kind referred to in paragraph 34J(1)(e) and that, in that case the prescribed authority must defer the questioning of the person and the person must be given facilities to make the complaint.  Item 13 adds the option of asking to give information of the kind referred to in proposed new paragraph 34J(1)(ea).  Items 14 and 15 insert consequential references to giving information after references to making a complaint later in subsection 34K(9).

Renumbered section 34R of the ASIO Act provides a limit to the time for which a person may be questioned under warrant.  The ASIO Bill will insert a new subsection (13) to provide that certain periods are to be excluded in calculating the time for which a person has been questioned.  One of the exclusions is the time taken for a person to make a complaint of the kind referred to in paragraph 34J(1)(e).  Item 17 would add to this a reference to the time taken to give information of the kind referred to in proposed new paragraph 34J(1)(ea).

The ASIO Bill will insert a new section 34ZX in the ASIO Act.  Section 34ZX would provide for financial assistance to persons in respect of whom a warrant is issued under Part III Division 3.  Proposed subsection (5) would provide that the section does not apply in relation to complaints of the kind mentioned in paragraph 34J(1)(e) .  Proposed new item 22 would insert a new paragraph (aa) to provide that the section does not apply in relation to giving information of the kind mentioned in proposed new paragraph 34J(1)(ea).

Item 16 (paragraphs 34K(11)(b) to (e), ASIO Act)

Paragraphs (b) to (g) are the same as paragraphs (b) to (g) under item 4.  Paragraphs (h) and (i) replicate proposed new paragraphs 34K(11)(c) and (e), which would be inserted in this provision of the ASIO Act by the ASIO Bill.  They provide that persons in custody or detention under Part III Division 3 of the ASIO Act have a right, and must be given facilities, to make oral or written complaints to a State or Territory police complaints agency.