Revised Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Chris Ellison)General outline and financial impact
General outline
The purpose of the Australian Federal Police and Other Legislation Amendment Bill 2004 is to complete the integration of the Australian Protective Service into the Australian Federal Police, and enable the Australian Federal Police to access Commonwealth investigative powers when investigating State offences which have a federal aspect.
The Australian Protective Service was established by the Australian Protective Service Act 1987 (the APS Act) and is the pre-eminent provider of protective security services for and on behalf of the Commonwealth. Following the Cornall Review in 2001, the Government determined that the Australian Protective Service (the APS) should transfer from the Attorney-General's Department and become an operating division of the Australian Federal Police (the AFP).
Stage one of the transfer occurred on 1 July 2002 and was quite limited. The APS became an operating division of the AFP, and legal and financial responsibility for the APS was transferred from the Attorney-General's Department to the AFP. However, the employment framework of the APS was left intact.
The APS and the AFP currently operate under separate legislative and employment arrangements. The Australian Federal Police Act 1979 (the AFP Act) sets out the functions of the AFP, and the powers and duties of the members and special members. Part III of the AFP Act covers the terms and conditions of employment of AFP employees. The APS Act sets out the functions of the APS, and the powers and duties of protective service officers and special protective service officers. Furthermore, APS employees are Public Service employees within the meaning of the Public Service Act 1999 (the PS Act).
The Bill will complete the transfer by creating a new category of employee (that is, protective service officer) in the AFP Act. It will also include in the AFP Act the protective service function as a function of the AFP and the powers and duties of protective service officers and special protective service officers. The APS Act will be repealed.
Within the employment framework for the APS, protective service officers are covered by an Award made under section 170MX of the Workplace Relations Act 1996 (the 170MX Award) and administrative employees (such as station managers) are covered by Australian Workplace Agreements (AWAs).
The integration of all APS employees into the AFP will be effected by section 72 of the PS Act, which provides that the Public Service Commissioner may determine that Public Service employees cease to be Public Service employees, and become employees of a specified Commonwealth authority. The determination must be made in writing, and the Public Service Commissioner must be satisfied that it is necessary or desirable in order to give effect to an administrative re-arrangement.
The transfer will result in some industrial instruments ceasing to apply, as the APS employees will no longer be public service employees. Australian Workplace Agreements will continue to have effect, as there is no change to the Commonwealth as the employer.
Subsection 72(3) of the PS Act provides that employees transferred under section 72 are entitled to remuneration and other conditions of employment no less favourable than those which applied under certain types of instruments immediately before the transfer. The nature of some of the industrial instruments existing within the APS workplace means that this obligation will not apply to all employees. However, as a matter of policy the "no less favourable" test will be implemented in relation to all APS employees transferring to the AFP. To cover the industrial instruments that will not be transferred, the AFP Commissioner will make a determination under subsection 24(1) of the PS Act, prior to the actual date of transfer. This will have the effect of those conditions being recognised under subsection 72(3) of the PS Act.
Protective service officers currently carry out functions and exercise powers under a range of other Commonwealth Acts. The Bill also makes consequential amendments to those Acts to ensure protective service officers can continue to carry out such functions and exercise such powers.
The Bill will also amend the AFP Act and the Crimes Act 1914 (Crimes Act) to enable the AFP to investigate State offences with a federal aspect. These amendments implement the legislative aspect of resolution 16 of the April 2002 Leaders' Summit on Terrorism and Multi-jurisdictional Crime. Resolution 16 committed:
"To legislate and develop administrative arrangements to allow investigation by the Australian Federal Police into State offences incidental to multi-jurisdictional crime."
The Standing Committee of Attorneys-General-Australasian Police Ministers Council Joint Working Group on National Investigative Powers (the Joint Working Group) was tasked with facilitating the implementation of resolution 16. In its report on resolution 16, the Joint Working Group recommended that:
"The Australian Federal Police (AFP) can best be given the power to investigate state offences incidental to multi-jurisdictional crime by amending Commonwealth legislation to allow the AFP to utilise Commonwealth investigative powers to investigate State offences with a federal aspect."
On 11 November 2003, the Australasian Police Ministers' Council (APMC) accepted the Joint Working Group recommendation, resolving:
"That the Commonwealth legislate to allow the AFP to utilise Commonwealth investigative powers to investigate State and Territory offences with a federal aspect and that administrative arrangements be developed for them by the middle of 2004."
In practice, where the AFP is investigating Commonwealth crimes, it may become apparent that State offences have also been committed. The amendments in Schedule 3 of the Bill will amend the AFP Act and the Crimes Act to enable the AFP to investigate the totality of the criminal conduct where those State offences have a federal aspect. A State offence has a federal aspect if the subject-matter of the offence is a subject on which the Commonwealth has constitutional power to legislate. A State offence also has a federal aspect where the investigation of that State offence is incidental to an investigation of a Commonwealth or Territory offence.
Financial impact
There is no direct financial impact on Government revenue from this Bill.