Explanatory Memorandum
(Circulated by authority of the Minister for Justice, the Honourable Brendan O'Connor MP)Schedule 5 - Australian Federal Police Act 1979
Part IV amendments
Part IV of the AFP Act provides the statutory basis for alcohol and other drug testing, including discretionary and mandatory alcohol tests, and the types of equipment to be used for the conduct of those tests. The AFP regulates the consumption of alcohol by its appointees and has a blood alcohol limit of 0.02 for all AFP appointees while on duty.
The AFP Act differentiates between the terms 'alcohol screening test', 'alcohol breath test' and 'blood test'. Currently, the AFP Act limits the use of alcohol screening tests to the circumstances outlined in section 40LA. That is, where an authorised manager has a reasonable suspicion that the appointee is on duty and under the influence of alcohol.
The AFP Act does not currently allow for the conduct of alcohol screening tests as a preliminary form of testing under sections 40M (random workplace testing) and 40N (critical incident testing). In these circumstances, only an 'alcohol breath test', using an 'approved breath analysis instrument', can be conducted.
The instrumentation used for 'alcohol breath tests' is not readily portable and requires specialist operator training. In contrast, an approved breath screening device is portable and easily operated.
The amendments to Part IV of the Act will enable the AFP to use alcohol screening tests as a preliminary form of testing for all random, targeted investigation and certain incident alcohol testing. The conduct of preliminary alcohol screening tests within sections 40M and 40N will enable alcohol testing to be undertaken in a timely and resource effective manner.
Section 40R of the AFP Act allows the Minister to approve devices, including devices used to conduct 'alcohol screening tests' under section 40LA, as 'approved screening devices'. An approval by the Minister is a legislative instrument. The amendments will allow the Minister to approve devices used to conduct tests for the purposes of the amended sections 40M and 40N as 'approved screening devices'.
Part V amendments
Part V of the AFP Act was inserted by the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 (the AFP Amendment Act 2006) to modernise the complaints and professional standards regime within the AFP.
If an AFP appointee engages in misconduct, the appointee is subject to certain consequences depending on the category of conduct within which their behaviour falls. The AFP Act provides for four different categories of conduct. The Commissioner and Ombudsman determine jointly, by legislative instrument, the types of conduct that fall within categories 1 to 3, as defined in the AFP Act. The fourth category of conduct, and the most serious, is conduct giving rise to a corruption issue.
Section 40RD requires the Commissioner to constitute a unit (the professional standards unit) to undertake the investigation of category 3 conduct issues and corruption issues. Category 3 conduct includes things such as a serious breach of the AFP Code of Conduct and improper disclosure of sensitive information held by the AFP. Examples of conduct that would give rise to a corruption issue are conduct that perverts the course of justice and conduct that involves an appointee abusing his or her position as an appointee of the agency.
Part VI of the Act contains miscellaneous procedural and offence provisions.
The amendments to Part V and VI aim to rectify drafting oversights, improve the investigation of conduct issues and allow for the conferral of awards.
Items 1 and 2: subsection 40LA(3), paragraph 40LA(4)(a) - authorised managers may require AFP appointees to undergo alcohol screening tests etc
These items correct errors in existing subsection 40LA(3) and paragraph 40LA(4)(a), which incorrectly refer to alcohol being present in a test subject's blood, rather than their breath. Under section 40LA, blood alcohol content is not measured as part of the screening test, because a screening test only screens the breath for the presence of alcohol. It does not provide a blood alcohol content measurement. These items of the Bill omit 'blood' and substitute 'breath'.
The note to item 1 also replaces the heading of the section 40LA to make it clear that 'authorised managers' may require AFP appointees to undergo alcohol screening tests under this section.
Item 3: subsection 40M(1) - alcohol breath tests and prohibited drug tests
This item amends section 40M to allow a person, prescribed under the regulations, to give a written notice to an AFP employee or special member on duty, of a direction requiring the employee or special member to undergo one or more of the alcohol and drug tests set out in subsection 40M(1).
The purpose of this item is to ensure that more comprehensive testing can take place without the need for a further direction, if preliminary testing, such as an alcohol screening test, indicates the presence of alcohol in a test subject's blood.
The note to this item replaces the heading to section 40M to make it clear that prescribed persons may require AFP employees or special members to undergo alcohol and prohibited drug tests.
Item 4: before paragraph 40M(1)(a) -alcohol breath tests and prohibited drug tests
This item inserts a new paragraph allowing for alcohol screening to take place under section 40M, in addition to alcohol breath tests. The provision for alcohol screening tests, as a preliminary form of testing, will assist the AFP in determining whether more rigorous testing, in the form of a breath test or blood test, is necessary.
Items 5 to 7: paragraphs 40M(1)(a) to (b) - alcohol breath tests and prohibited drug tests
These items amend grammatical errors arising from the insertion of 'to do one or more of the following' as inserted into subsection 40M(1), and outlined at Item 4.
Item 8: before paragraphs 40N(1)(c) and (2)(c) - alcohol breath tests and prohibited drug tests after certain incidents
This item inserts a new paragraph allowing for alcohol screening to take place under section 40N, in addition to alcohol breath tests. The provision for alcohol screening tests, as a preliminary form of testing, will assist the AFP in determining whether more rigorous testing, in the form of a breath test or blood test, is necessary.
Item 9: paragraph 40R(1)(b) - approval of screening devices
Under section 40R of the AFP Act, the Minister may approve devices used to conduct 'alcohol screening tests' under section 40LA as 'approved screening devices'.
This item amends paragraph 40R(1)(b) to allow the Minister to approve devices used to conduct tests for the purposes of sections 40M and 40N (which will be amended as outlined above to allow for an alcohol screening test to be conducted). The effect of this provision will be to allow the Minister to approve screening devices for the purposes of section 40LA, 40M and 40N.
Items 10 - 14: section 40RO - category 2 conduct
The AFP Act provides for four different categories of conduct issues. The least serious is category 1 conduct, which includes conduct that relates to minor management matters or customer service matters and conduct that reveals a need for improvement in the performance of the AFP appointee concerned. Category 2 conduct is the next most serious, and includes minor misconduct by an AFP appointee and inappropriate conduct that reveals unsatisfactory behaviour by an AFP appointee.
Section 40RO of the AFP Act defines category 2 conduct, and currently requires that it involve repeated instances of category 1 conduct. This definition was inserted by the AFP Amendment Act 2006 . However, it was not intended that section 40RO define category 2 conduct to require it to be repeated instances of category 1 conduct. These items will amend section 40RO to give effect to the original intention that category 2 conduct be either particular kinds of conduct as defined by subsection 40RO(1)(a) or conduct that involves repeated instances of category 1 conduct. For example, a single instance of a threat to use force against a person that is not authorised by a warrant, or repeated instances of unreasonable delays in dealing with issues, could each constitute category 2 conduct.
These items also move the content of paragraph 40RO(c) to a new subsection. This is purely a technical drafting amendment and has no substantive effect.
Items 15 and 16: subsection 40TN(1) - head of unit constituted under section 40RD generally allocates issues for investigation
The AFP Act provides for four different categories of conduct issues. The least serious is category 1 conduct, followed by category 2 conduct, category 3 conduct and finally, conduct giving rise to a corruption issue.
Subsection 40TN(1) of the AFP Act provides that, subject to section 40TO, the head of the professional standards unit must allocate an AFP conduct issue or corruption issue to a person who is a member, or a special member of the AFP. Subsection 40TN(3) provides that the issue may be allocated to a person outside the professional standards unit to investigate with the Commissioner's agreement. However, by virtue of subsection 40TN(1), that person must be a member, or special member, of the AFP.
The need for a person who is allocated an issue to be a member, or a special member of the AFP, creates difficulties where it is necessary to conduct a joint investigation between the professional standards unit and another agency, such as a State or Territory police force. In these circumstances, members of an agency other than the AFP must be sworn in as special members of the AFP, providing these investigators with a range of powers that go beyond the investigative powers provided for in Part V, Division 5 of the AFP Act.
Paragraph 40TO(1)(b) of the AFP Act allows the Commissioner to allocate an issue to a person outside the professional standards unit, who need not be a member, or special member of the AFP. However, that provision is intended to address circumstances where allocating the matter to the unit may compromise the investigation. Accordingly, the Commissioner can only allocate the issue to a person outside the unit if he or she is satisfied that it would be 'inappropriate' for the issue to be allocated to a person within the professional standards unit. It is not appropriate to rely upon this provision where the professional standards unit need to participate in a joint investigation with another agency.
These items will amend subsection 40TN(1) to provide that the head of the professional standards unit may allocate category 3 conduct issues to 'law enforcement officers' within the meaning of section 3 of the Crimes Act. The term 'law enforcement officer', as defined in the Crimes Act, includes members and special members of the AFP, members of a State or Territory police force, staff members of the Australian Commission for Law Enforcement Integrity and the Australian Crime Commission, officers of the Australian Customs Service, and members of a police force or other law enforcement agency of a foreign country. This will allow the unit to participate in a joint investigation with another agency without the need for officers of the other agency to first be sworn in as special members of the AFP.
These amendments have no effect on the AFP's capacity to conduct a joint investigation with another agency, with the Commissioner's agreement. Further, subsection 40VB(5) of the AFP Act authorises the Commissioner to give the investigator directions as to the manner in which the investigation is to be conducted. This provision is applicable to an investigator appointed under these amendments.
Item 17: subsection 61(1) - awards for bravery
Under section 61 of the AFP Act, the Commissioner may confer awards upon a Deputy Commissioner, AFP employee, special member or a special protective service officer where 'bravery or other conspicuous conduct' merits the conferring of a prescribed award.
This item amends subsection 61(1) to allow for the conferral of awards on an 'AFP appointee'. The effect of the provision is to allow for the recognition of a broader range of AFP employees including contractors engaged under section 35 of the Australian Federal Police Act. The item also extends the application of section 61 to a person who is assisting the AFP pursuant to an agreement under section 69D of the AFP Act.
Item 18: subsection 61(1) - awards for bravery
This item amends subsection 61(1) to allow for the conferral of awards for 'diligent service'. The inclusion of 'diligent service' enables a wider range of conduct, worthy of award, to be recognised.
Item 19: after subsection 61(1) - awards for bravery
This item inserts a new subsection which allows the Commissioner to confer an award on a person, other than an AFP appointee, who has, by his or her bravery, or conspicuous conduct, assisted the Australian Federal Police. This item will ensure that people who assist the AFP (but who are not AFP appointees and who are not operating pursuant to an agreement under section 69D) can be recognised for their contribution. For example, this item allows for awards to be conferred on employees of other agencies who assist the AFP, but who are not covered by secondment or other arrangements.
Item 20: subsection 64A(2) - members in uniform to wear identification numbers
The Australian Federal Police and Other Legislation Amendment Act 2004 amended subsection 64A(1) of the AFP Act so the members of the AFP only had to have their identification numbers 'clearly visible on the uniform' as opposed to 'on, or attached to, the front of his or her uniform'. It is an offence for a member to breach this requirement. There is a penalty of five penalty units.
Subsection 64A(2) is a defence provision to the offence created in subsection 64(1) of the AFP Act. This subsection still refers to the identification number being worn at the front of the uniform. This creates an anomaly in that there is no defence to the offence, as was intended. This item amends subsection 64A(2) so that the defence matches the offence and is therefore effective.
Item 21: application
This item provides that 'diligent service' in Item 18 applies in relation to service occurring before, on or after, the commencement of Item 18. This ensures that AFP appointees can be recognised for service undertaken throughout their careers rather than limiting it to service undertaken after the commencement of this item.