Explanatory Memorandum(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Amanda Vanstone)
This Bill simplifies the existing complex employment provisions in the Australian Federal Police Act 1979 (the Act), providing a framework for greater reliance on industrial agreements, consistent with the Governments workplace reforms. The Bill enacts the AFP Commissioners general power of employment but detailed employment conditions, such as remuneration, will be determined through agreements in accordance with the Workplace Relations Act 1996 (WR Act). The Bill also recognises and preserves the distinct nature of the AFP as a disciplined force by specifically retaining the Commissioners command powers, to the exclusion of the WR Act.
In providing for greater flexibility in employment, the Bill:
- abolishes a rank based structure, although the effect of the traditional rank structure will be retained for the purpose of the exercise of police powers.
- abolishes the statutory fixed term appointment regime and repeals the provisions of the Act which were necessary to support this statutory regime. The Commissioner, like any employer, can engage employees for a continuous period or a fixed period on terms specified on engagement and provided by industrial agreement
- clarifies the Commissioners command powers as head of a disciplined force. These powers were confirmed by the Federal Court in
Anderson v Sullivan
148 ALR 633 . They include the power to
- terminate employment for serious misconduct
- obtain financial declarations; and
- order the taking and testing of body samples from AFP employees for the purpose of testing for drugs; and
- confer upon appropriately qualified AFP employees, the status of member or revoke that status; and
- confer the rank of a policing role for the purposes of the exercise of police powers where Commonwealth, State or Territory legislation specifies that certain police powers are to be exercised at a certain rank.
- empowers the Commissioner to amend or revoke a determination in relation to the Australian Federal Police Adjustment Scheme (AFPAS). This adjustment payment was an incident of statutory fixed term appointments. Therefore, there will no longer be an entitlement to AFPAS under the Act.
The provisions of the Bill will necessitate consequential amendments to related legislation and regulations, including:
- the Complaints (Australian Federal Police) Act 1981
- the Workplace Relations Act 1996
- the Australian Federal Police (Discipline) Regulations