Bills Digest no. 162 2005–06
Law Enforcement (AFP Professional Standards and Related Measures)
Bill 2006
WARNING:
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 Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Law Enforcement (AFP Professional
Standards and Related Measures) Bill 2006
Date introduced: 29 March 2006
House: House of Representatives
Portfolio: Attorney-General
Commencement: Sections 1 to 3 commence on date of Royal Assent. Schedules
1 to 5 commence at the same time as the Law Enforcement Integrity Commissioner
Act 2006.
The Law Enforcement (AFP Professional Standards and Related Measures)
Bill 2006 repeals the Complaints (Australian Federal Police) Act 1981
and inserts a new part into the Australian Federal Police Act 1979
to update the complaints and professional standards regime within the
Australian Federal Police.
This Bill forms part of a package of Bills. The Law Enforcement Integrity
Commissioner Bill 2006 would establish the Australian Commission for Law
Enforcement Integrity (ACLEI). The Commissioner will be responsible for
detecting and investigating allegations of corruption against the Australian
Crime Commission and the Australian Federal Police, and will have the
powers of a Royal Commission. The Bills Digest is available here.
The Law Enforcement Integrity Commissioner (Consequential Amendments)
Bill 2006 aims to amend a range of acts consequential to the establishment
of ACLEI. It applies the full range of police special investigative powers
to the Commissioner. The Bills Digest is available here.
On 30 March 2006,
the Senate referred the above Bills to the Senate Legal and Constitutional
Legislation Committee for inquiry and report by 11 May 2006. The final report is available here.
It was announced on 20 June
2006 that the Coalition party room had cleared amendments to
the package of Bills to be introduced to Parliament.
The central characteristics of the current AFP model of professional
standards are contained in the Complaints (Australian Federal Police)
Act 1981 (to be repealed by this Bill), the Australian
Federal Police (Discipline) Regulations 1979 and the Commissioner's
Orders. These provisions provide a structured regime of control of police
action, which reflects the view that police behaviour is best controlled
by rules of conduct enforced by legalistic charges and determined in certain
circumstances by the Federal Police Discipline Tribunal.
The ‘modern’ history of reviews of the complaints regime of the Australian
Federal Police goes back over thirty years with the Australia Law Reform
Commission’s (ALRC) first report, Complaints
Against Police, in 1975. That report was followed by another
ALRC report in 1978, also called Complaints Against Police. The
work by the ALRC eventually resulted in the Complaints (Australian
Federal Police) Act 1981. According to the Minister’s second reading
speech:
the Bill recognises the need identified by the [ALRC]
for certain elements of independence in the receipt, handling, investigation
and determination of complaints against police. The first of these elements
is use of the Ombudsman as 'neutral territory' for the receipt of complaints,
as the investigator of last resort and as public guardian to ensure
that adequate and proper steps are taken in relation to complaints.
The second element is establishment by statute of a special unit of
the Police Force titled the 'Internal Investigation Division' with a
specialised and independent function of investigating complaints by
members of the public against police. Investigation of complaints against
police will normally be carried out by this unit. I mention that a unit
of this nature has already been established by the Commissioner by administrative
action. The third element of independence will be the establishment
of a police disciplinary tribunal whose president will be a judge to
hear charges against police officers of breaches of the disciplinary
code. However, as recommended by the Commission, criminal charges against
police will continue to be dealt with in the ordinary criminal courts.(1)
In 1995, the ALRC was again tasked with inquiring into the Complaints
(Australian Federal Police) Act 1981 and the complaints and disciplinary
system of the Australian Federal Police. The ALRC report, Integrity:
But Not By Trust Alone (ALRC 82) was tabled in Federal Parliament
in December 1996. The recommendations in ALRC 82 have not been implemented.
In this review, the ALRC observed that AFP processes were ‘outdated’ and
‘unsatisfactory’.(2) The ALRC proposed the establishment of
a National Integrity and Investigations Commission as a response to the
concerns it identified in its report. The Commission would have jurisdiction
over the AFP and NCA, dealing with complaints and an office dealing with
corruption.
In 1997, at the request of the Attorney-General,
a report by a senior lawyer was conducted into allegations made about
the AFP, by a former officer Alan Taciak.
Whilst the report was not publicly released, the Attorney-General provided
details in a press
release on 8 May 1997. The report recommended that the Commonwealth
Ombudsman, with enhanced powers, should retain the role of providing external
scrutiny of complaints or allegations of police misconduct or corruption.
In November 1997, the Commonwealth Ombudsman released a report on whistle
blowing procedures within the AFP entitled Professional
reporting and internal witness protection in the Australian Federal Police
- a review of practices and procedures. The majority of recommendations
were for improved administrative procedures, with greater oversight by
the Ombudsman, although there was recognition of the need for consistent
legislation on whistleblowers across the Commonwealth.
In 2001, the Senate Legal and Constitutional Reference Committee undertook
an inquiry into management arrangements and adequacy of funding of the
AFP and NCA. The Committee recommended that:
the procedures for dealing with complaints and allegations
be examined with a view to their being simplified and made more transparent,
and to ensuring that employees are not disadvantaged by the use of administrative
instead of disciplinary processes.(3)
This recommendation led to the appointment of a retired judge, the Hon.
Justice William Fisher AO QC, to undertake A Review of Professional
Standards in the Australian Police Force (the Fisher review).
Justice Fisher's recommendations centred
around the establishment of a 'managerial model' for professional standards
rather than a legalistic and formal approach. The Fisher Review observed:
In complaints and discipline matters police services
have traditionally tended to focus too much on the aspect of reactive
punishment.(4)
The Government’s response to the review was released in March 2006 with
the introduction of the present Bill. The relevant media release stated
that the legislation implements the bulk of the Fisher recommendations
(later clarified by the Senate inquiry as 15 out of 23(5)):
In line with best practice in modern management, changes
to the AFP’s complaints and discipline regime will involve non-punitive
managerial measures to improve performance wherever this can be effective.
In serious cases the Commissioner of Police will still have the power
to dismiss officers whose performance is unsatisfactory.
These changes will ensure a quick, firm and effective
response to any unacceptable police conduct. This will provide the best
outcomes for AFP management and staff and, most importantly, for the
public.
The present systems were put in place around 25 years
ago and the AFP has come a long way since then. It needs a system that
doesn’t waste resources on complex procedures and red tape.(6)
Senator Patricia Crossin, Deputy Chair of the Senate Legal and Constitutional
Legislation Committee and Senators Linda Kirk and Joseph Ludwig set out
the ALP position on this Bill via ‘Additional Comments’ in the final report
as follows:
First, the Labor Senators note that the Law Enforcement (AFP
Professional Standards and Related Measures) Bill 2006 implements the
majority – in whole or in part – of the 2003 Fisher Report's recommendations
with respect to AFP professional standards. In relation to recommendation
23, Labor notes and supports the proposed Government amendment to clarify
the law around the AFP Commissioner's 'assignment of duties' power in
section 40H of the Australian Federal Police Act 1979.
Second, the new complaints and professional standards system
is supported by the Labor Senators and is long overdue, however we believe
that the committee's comments and recommendations do not go far enough
to protect of the rights of 'AFP appointees' (particularly since the Bill
gives a lot of discretion to AFP management to make certain decisions
to correct behaviour of the AFP appointee involved). We do recognise the
undertaking by AFP Commissioner Mick Keelty
to address the use of this managerial discretion in the AFP's internal
guidelines on the professional standards framework, however, Labor believes
more needs to be done.
Labor believes in instances where punitive or pecuniary effects
are a consequence of disciplinary action some method of review would be
appropriate to avoid unjust or disproportionate outcomes.(7)
The Explanatory Memorandum states there will be no direct financial implications
for the Government.(8) However, the Commonwealth Ombudsman
gave evidence to the 2006 Senate Legal and Constitutional Legislation
Committee inquiry that its resources and funding requirement need to be
reviewed in light of its additional responsibilities under the Bill.(9)
Schedule 1 – Amendments to Australian Federal Police Act 1979
The main amendments are introduced by item 28 which inserts a
new Part V into the Act headed Professional standards and AFP
conduct and practices issues. New Part V has nine divisions. New
section 40RB provides a simplified outline of Part V.
Items 2 to 25 amend existing section 4 of the AFP Act by
inserting a number of new definitions relating to new Part V.
Item 2 expands the current definition of AFP appointee
(contained in the Complaints (Australian Federal Police) Act 1981)
to cover all persons engaged by the AFP Commissioner, including consultants,
independent contractors and persons engaged overseas as employees.
Items 14 and 16 insert a definition of corrupt conduct
by reference to the definition of ‘engages in corrupt conduct’ in section
6 of the Law Enforcement Integrity Commissioner Act 2006 if passed
(LEIC Act). This provision relates to ‘staff members’ of law enforcement
agencies which includes the AFP. A staff member engages in corrupt conduct
if the staff member, while a staff member of the agency, engages in:
- conduct that involves, or that is engaged in for the purpose of,
the staff member abusing his or her office as a staff member of the
agency, or
- conduct that perverts, or that is engaged in for the purpose of perverting,
the course of justice, or
- conduct that, having regard to the duties and powers of the staff
member as a staff member of the agency, involves, or is engaged in for
the purpose of, corruption of any other kind.
The term ‘engage in conduct’ is separately defined in section 5 of the
LEIC Act as meaning doing an act or omitting to do an act.
Item 15 inserts a definition of corruption issue by reference
to the definition in section 7 of the LEIC Act. A corruption issue as
an issue of whether a person who is, or has been, a staff member of a
law enforcement agency engages in corrupt conduct in the past, present
or future. The definition specifies that an allegation may raise a corruption
issue even if the identity of the person is unknown, is uncertain or is
not disclosed in the allegation or information.
The AFP Commissioner may determine the professional standards to be complied
with by AFP appointees (item 6 and clause 40RC).
A unit must be constituted within the AFP to undertake investigations
of AFP conduct issues and corruption issues that relate to conduct engaged
in by AFP appointees (clause 40RD). The head of the unit is responsible
directly to the AFP Commissioner (clause 40RE).
'AFP conduct issue' is defined broadly and relates to whether an AFP
appointee has engaged in conduct that breaches the AFP professional standards
or is corrupt conduct (clause 40RH and item 3). Conduct
that was engaged in before the commencement of this section and conduct
for which the statute of limitations has passed are included in the definition.
'AFP practices issue' is also defined broadly and concerns the practices
and procedures of the AFP, both within and outside of Australia
(item 5 and clause 40RI).
Clause 40RK sets out four categories of conduct that define what
behaviour is able to be the subject of a complaint in relation to a professional
standards issue for the purposes of the Bill.
- Category 1 conduct (least serious) – inappropriate conduct
that relates to minor management matters or customer service matters
or conduct that reveals a need for improvement by the AFP appointee
concerned (item 7 and clause 40RN).
- Category 2 conduct – minor misconduct by an AFP appointee,
inappropriate conduct that reveals unsatisfactory behaviour by an AFP
appointee or repeated instances of category 1 conduct (item 8
and clause 40RO).
- Category 3 conduct – conduct that is serious misconduct by
an AFP appointee or that raises the question whether termination action
should be taken, or involves a breach of the criminal law or serious
neglect of duty by an AFP appointee, and that is not conduct that raises
a corruption issue (item 9 and clause 40RP).
- The highest category of conduct is conduct giving rise to a corruption
issue (item 15 and clause 40RK).
The AFP Commissioner and the Commonwealth Ombudsman may jointly determine
by legislative instrument the kind of conduct that falls within category
1, 2 or 3. If a conduct issue potentially falls into a number of different
categories, it will be taken to fall within the highest of those categories
(clause 40RM).
Any person may give information that raises an AFP conduct or practices
issue either to the AFP Commissioner or any AFP appointee, in writing
or orally (clause 40SA). The information can be given anonymously
(paragraph 40SA(2)(b)). The Bill also provides mechanisms for persons
in custody to give information (clause 40SB).
A complainant is defined as a person who either
expressly or impliedly indicates that he or she wishes to be kept informed
of the action taken in relation to an AFP conduct or practices issue (item
13 and sub-clause 40SA(3)).
Information given under clause 40SA must be recorded and dealt with in
accordance with subclause 40TA(1). There is an exception for a
category 1 conduct issue or an AFP practice issue (subclause 40SC(2)).
The detailed process by which questions and complaints lodged under Division
2 must be dealt with will be set out by the Commission in a set of orders
under existing section 38 of the Act. The question of whether such section
38 orders are purely administrative or may be legislative in character,
and as such required to be in the form of a disallowable instrument, was
considered by the Senate Standing Committee for the Scrutiny of Bills
in relation to the Australian Federal Police Legislation Amendment Bill
1999.(10)
The Commissioner can take training and development action (clause
40TC), remedial action (clause 40TD) and termination
action (clause 40TE) or take no further action at his
or her discretion (clause 40TF).
New Subdivision D, clauses 40TL to 40TW, deal with special processes
for category 3 conduct and corruption issues.
This division provides for the administering Minister to direct that
an inquiry be held about any matter relating to the AFP. Such inquiries
may be additional to, or instead of, a Division 3 investigation. The Minister
has wide discretion about how they may be conducted (clause 40UA).
The reports do not have to be publicly released (clause 40UD).
If the Minister arranges for an inquiry, he or she must inform the Commonwealth
Ombudsman, ACLEI and other persons or bodies that the Minister deems appropriate
about the details of the inquiry (clause 40UB).
Where a person is investigating a category 3 conduct issue, a corruption
issue (under Division 3) or a ministerially directed inquiry (under Division
4), Division 5 provides additional powers to the investigator (clause
40VA).
The investigator may:
- conduct the inquiry and may obtain information in a manner that he
or she thinks fit (subject to the Division) (clauses 40VB and 40VC)
- enter and search AFP premises for the purposes of an investigation
or inquiry (clause 40VF), and
- direct an AFP appointee to provide information, produce a document
or thing, answer a question or do anything else reasonably necessary
for the purposes of the investigation or inquiry (clause 40VE).
The AFP appointee is not excused from complying with the direction on
any ground. The production of information or evidence obtained from the
AFP appointee is not admissible in evidence against the AFP appointee
in civil or criminal proceedings (with some exceptions). Similar powers
are given to an investigator conducting a ministerially directed inquiry
(clause 40VG).
A number of offences regarding the non-compliance of AFP appointees with
an investigation are listed at clause 40VH. The offences attract
a maximum penalty of six months imprisonment.
The AFP Commissioner must keep adequate records for the purposes of new
Part V. There is an exception for category 1 conduct issues that are resolved
without being recorded (clause 40WA). Both ACLEI and the Commonwealth
Ombudsman are entitled to have access to the records for the purposes
of performing their functions.
The Bill revises the role for the Commonwealth Ombudsman in relation
to professional standards. It gives the Ombudsman:
- the ability to jointly determine, with the AFP Commissioner, the
kinds of issues that belong to various categories of conduct
- access to the records that are kept in relation to AFP conduct and
practices issues, and
- the role of conducting annual and ad hoc reviews of the operation
of the new professional standards system.
The Commonwealth Ombudsman's review role is to review the administration
of Part V (clause 40XA). At least every 12 months the Ombudsman
must inspect the records of AFP conduct and practices issues that have
been, or are being dealt with, under Divisions 3 and 4. The Ombudsman
may also conduct ad hoc inspections (clause 40XB).
The Commonwealth Ombudsman must prepare an annual report for the Parliament
that includes information as to the adequacy of the administration of
matters under Divisions 3 and 4 (clause 40XD).
Division 8 provides that it is an offence:
- to cause, or threaten to cause, detriment to another person on the
ground that the person, or another person, gave information for the
purposes of Part V (‘Victimisation’, clause 40YA, maximum 6 months
imprisonment)
- to provide false information about AFP conduct or practices issues
(clause 40YB, 20 penalty units), or
- for an AFP appointee to refuse to give the necessary personal details
without reasonable excuse, or to give false details, where a person
has requested those details for the purpose of making a complaint or
raising a conduct issue, and where the AFP appointee was informed of
the reason for requesting the details (clause 40YC, 5 penalty
units).
Clause 40ZA creates an offence where a person inappropriately
records or communicates information acquired via the investigation or
inquiry (30 penalty units).
Item 1 repeals the above Act. The new complaints and disciplinary
regime will now be located within the Australian Federal Police Act
1979 (see Schedule 1).
Item 2 is a transitional provision to provide that the 1981 Act
continues to apply to complaints made, or referred by the Commonwealth
Ombudsman, under that Act before the commencement of this Schedule.
Schedule 3 makes various technical amendments to the following
Acts:
- Administrative Decisions (Judicial Review) Act
1977
- Australian Crime Commission Act 2002
- Australian Federal Police Act 1979
- Australian Security Intelligence Organisation Act 1979
- Crimes Act 1914
- Criminal Code Act 1995
- Ombudsman Act 1976, and the
- Witness Protection Act 1994.
The Anti-Terrorism Act (No. 2) 2005 introduced new Division 104
and 105 into the Criminal Code dealing with the introduction of control
orders and preventative detention in relation to the prevention of terrorist
acts. Note that the amendments to the Criminal Code in items 36 to
45 would allow a person subject to a control order or preventative
detention order under section 105 to have access to the Ombudsman for
the purpose of making a complaint or providing information under clause
40SA.
Note in relation to the Ombudsman Act 1976, item 52 would
allow the Ombudsman to be known as the Law Enforcement Ombudsman
when performing functions in relation to the Australian Federal Police.
Item 54 would give the Ombudsman the discretion to decide
not to investigate a complaint and transfer responsibility for the investigation
of the complaint to the AFP Commissioner. The Ombudsman must provide the
AFP Commissioner with information as soon as is reasonably practicable
and advise the complainant that the complaint has been transferred to
the AFP Commissioner to be dealt with under the Act.
Item 55 would allow the Ombudsman to use persons with police
training to assist investigations of complaint about AFP conduct or practices
issues. The Ombudsman may use an AFP appointee who is made available to
him or her by the AFP Commissioner or a State Police officer who has been
made available under arrangements made by the AFP Commissioner.
Item 56 would amend existing section 8A of the Ombudsman
Act, so that the Ombudsman can make an arrangement with State Ombudsmen
in relation to investigations of certain action.
Item 3 inserts new clause 40LA relating to alcohol screening
tests. The provision gives authority for an on-duty AFP appointee to
undergo a screening test for alcohol.
If the test shows alcohol is not present then the AFP appointee may return
to his or her duties. If the test shows alcohol to be present or the AFP
appointee refuses the screening test then a written direction under section
40M to undergo a breath test may be given.
Item 3 inserts a new section 30A which provides for resignation
of an AFP employee in anticipation of termination of employment.
The main criticism of this Bill has come from the Australian Police Federation
of Australia (AFPA). While generally supporting the proposed changes,
the Association told the recent Senate inquiry that it does not believe
that the Bill covers all the required areas adequately and thus, should
not be passed in its current form.(11)
The AFPA submission argues that:
- the recommendations of Justice Fisher
have not been interpreted in the light of the changes in the industrial
environment since 2003
- non-reviewable outcomes have a punitive action against the employee
- the AFP tribunal has been removed, but there is no clear indication
that AFP regulation 24 still applies to AFP employment decisions (regulation
24 provides that a process for review of employment decisions must exist
at all times)
- there are no reviewable actions in the new structure, as envisaged
by Justice Fisher
- professional standards can be used as an umbrella to incorporate
employment related actions to usurp the application of the Workplace
Relations Act 1996, and
- the new structure needs more refinement and specificity in its powers
and application to avoid the possibility of abuse and misuse by those
empowered within it.(12)
In response, the Senate Legal and Constitutional Legislation Committee
made the following recommendations in its 11 May 2006 report relating to this Bill on the
basis of the analysis contained in Chapter
Four:
Recommendation 12 The committee recommends that the Law Enforcement
(AFP Professional Standards and Related Measures) Bill 2006 be amended
to provide that a determination on categories of conduct shall be made
by the Commonwealth Ombudsman and the Commissioner of the Australian
Federal Police within three months of the commencement of the Act.
Recommendation 13 The committee recommends that the lower level
disciplinary matters (categories 1 and 2) should be subject to internal
review while more serious matters (category 3) should be the subject
of external review for example, through the Administrative Appeals Tribunal.
Recommendation 14 The committee also recommends that the possible
conflict of the Bill with the Workplace Relations Act 1996 be
resolved, before the Law Enforcement (AFP Professional Standards and
Related Measures) Bill 2006 is enacted.
Recommendation 15 The committee recommends that the Law Enforcement
(AFP Professional Standards and Related Measures) Bill 2006 clarify
that the professional standards regime applies to the Commissioner of
the Australian Federal Police.(13)
- Senator the Hon Durack, Senate
Debates, 26 February 1981, p. 170.
- See Chapter 3, Integrity:
But Not By Trust Alone (ALRC 82)
- ‘Order
in the Law - The Report of the Inquiry into the Management Arrangements
and Adequacy of Funding of the Australian Federal Police and the National
Crime Authority’, Report of the Senate Legal and Constitutional
Committee, 28 August 2001.
- The Hon. W.K. Fisher AO QC, A
Review of Professional Standards in the Australian Federal Police,
Commonwealth of Australia,
2003, p. 59.
- ‘Provisions of: Law Enforcement Integrity Commissioner Bill 2006,
Law Enforcement Integrity Commissioner (Consequential Amendments) Bill
2006 and Law Enforcement (AFP Professional Standards and Related Measures)
Bill 2006’, Report of the Senate Legal and Constitutional Legislation
Committee, 11 May 2006, p. 52.
- Senator Ellison, Minister for Justice
and Customs, ‘Major changes to the oversight of law enforcement’, media
release, 29 March 2006.
- Report of the Senate Legal and Constitutional Legislation Committee,
op cit, 11 May 2006, p. 63.
- Explanatory Memorandum, p. 1.
- Commonwealth Ombudsman, Submission 4, p. 4.
- See further the Alert
Digest No. 16 of 1999.
- Australian Federal Police Association, Submission 6, p.
2.
- See Australian Federal Police Association, Submission 6 and
Supplementary Submission 6A, Answers to Questions on Notice, as
summarised in the Report of the Senate Legal and Constitutional Legislation
Committee, op. cit., 11 May 2006, pp. 51–52.
- Report of the Senate Legal and Constitutional Legislation Committee,
op cit, 11 May 2006, pp. 56–61.
Sue Harris Rimmer
20 June 2006
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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