Australian Federal Police (Discipline) Regulations (Amendment) (Cth)

Statutory Rules 1992 No.1

Australian Federal Police (Discipline) Regulations2 (Amendment)

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Australian Federal Police Act 1979.

Dated 1 September 1992.

BILL HAYDEN

By His Excellency's Command, Governor-General

Michael Tate

Minister of State for Justice

1. Amendment

1.1 The Australian Federal Police (Discipline) Regulations are amended

as set out in these Regulations.

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[NOTE: these Regulations commence on gazettal; see the Acts Interpretation Act 1901	f
s.48]
2. Part I (Heading)

2.1 Omit "I", substitute "1".

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3. Regulation 2 (Interpretation)

3.1 Subregulation 2 (2):

Omit "Each", substitute "Subject to subregulation (5), each".

3.2 Paragraph 2 (2) (d):

Omit "(b),".

3.3 Paragraph 2 (3) (a):

Omit "(b)", substitute "(a)".

3.4 Paragraphs 2 (3) (b) and (c):

Omit the paragraphs. 3.5 Add at the end:

"(5) For the purposes of Part 3, a disciplinary offence is taken not to include a disciplinary offence for which the person guilty of the offence is liable to dismissal under Part 4."

4 Part II (Heading)

4.1 O m i t " I I ", substitute "2".

5. Regulation 3 (Performance of duties)

5.1 Omit the regulation, substitute:

Performance of duties

"3.	A member or staff member must at all times:
(a)	behave with courtesy to the public; and

(b) comply at all times with:

(i) the provisions of any law that apply to the member or staff member; and

(ii) the provisions of General Orders and General

specified respectively in Part 1 Mid Part 2 of Instructions issued under section 14 of the Act that are	Schedule 1, to the extent that those provisions apply to
the member or staff member.".

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6. Regulation 4 (Absence from duty)

6.1 Omit the regulation.

7. Regulation 12 (Malingering)

7.1 Omit the regulation, substitute:

Intentionally prejudicing police services

"12. A member or staff member must not:

(a) fail to give prompt attention to his or her duties; or

(b) be absent from duty without authority;

with the intention of prejudicing police services.".

8. Regulation 18 (Disciplinary offences)

8.1 Paragraphs 18 (1) (b) and (c):

Omit the paragraphs.

9. Part m (Heading)

9.1	Omit "III", substitute "3".
10.	Regulation 19 (Proceedings for certain disciplinary offences)

10.1 Subregulation 19 (1): than a disciplinary offence for which the person guilty of the offence is liable to dismissal under Part 4),".

11. New Part 4

11.1 After regulation 22, insert:

"PART 4—DISMISSAL IN CERTAIN CASES OF CRIMINAL

CONVICTION

Application

"23. This Part applies to a relevant offence only if the offence

was committed on or after the date of commencement of this Part.

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Interpretation

"24. (1) In this Part, unless the contrary intention appears:

'Australia' includes the External Territories;

'conviction' includes a finding of guilt (however expressed);

'imprisonment' includes periodic detention, detention at home and other

forms of lawful detention;

'mental disorder' means:

(a)	insanity or other mental illness; or
(b)	intellectual or mental disability;

'relevant offence' means a criminal offence against the law of the Commonwealth, a State or a Territory that is punishable by imprisonment.

"(2) For the purposes of this Part, a conviction is taken to be

nullified if:

(a) it has been quashed or set aside on appeal or judicial review, and:

(i) it has not been restored; and

(ii) no alternative conviction has been substituted; or

(b)	a free pardon has been granted to the convicted person because the person was wrongly convicted; or
(c)	the convicted person has been released from prison as a result of an inquiry into the conviction.

"(3) For the purposes of this Part, if:

(a)	a person is charged with, or indicted for, a criminal offence and a finding is made or a verdict is recorded that the person is unfit, because of mental disorder, to plead or to be tried; or
(b)	a finding is made or a verdict is recorded that the person is not guilty of a criminal offence because of mental disorder, or is guilty but insane in respect of a criminal offence;

the finding or verdict is taken not to be a conviction.

"(4) A contravention of Part XIIlA of the Family Law Act 1975 is

not a relevant offence.

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Liability to mandatory dismissal in certain cases of conviction

"25. (1) A member or staff member who is convicted of a relevant offence is liable to mandatory dismissal for a disciplinary offence if the sentence imposed for the offence:

(a)	is one of imprisonment for a period that is longer than 24 hours; and
(b)	is imposed otherwise than because the member or staff member defaulted in paying a monetary penalty; and
(c)	is not a sentence whose operation is suspended.

"(2) If:

(a)	a member or staff member is convicted of a relevant offence for which a suspended sentence of imprisonment is imposed; and
(b)	the sentence is brought into operation otherwise than in default of payment of a monetary penalty;

the member or staff member is liable to mandatory dismissal.

"(3) Liability of a member or staff member under this regulation

does not arise:

(a) until the expiry of the time for lodging a notice of appeal (including an appeal made in accordance with leave to appeal) or a notice of application for leave to appeal, against:

(i) the relevant conviction; or

(ii) the relevant sentence; or

(iii) in relation to dismissal under subregulation (2)—the activation of the relevant suspended sentence; or

(b) if a notice referred to in paragraph (a) has been lodged— before the appeal or application in the notice has been disposed of, discontinued or withdrawn.

"(4) If the Commissioner is satisfied beyond reasonable doubt that a member or staff member is liable under this regulation to mandatory dismissal, the Commissioner must dismiss the member or staff member.

"(5) After dismissing a member or staff member under subregulation (4), the Commissioner must promptly cause to be served on the member or staff member a notice of dismissal that states the grounds and the date of the dismissal.

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Service of a notice under subregulation 25 (5)

"26. (1) If a member or staff member is held in a place of lawful imprisonment, a notice required to be served under subregulation 25 (5) may be served by delivering it, or posting it by pre-paid post (by airmail if the place is overseas), to the governor or other person in charge of the place, together with a written request to the governor or other person that the notice be given to the member or staff member.

"(2) Subregulation (1) does not affect the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to the service of a notice.

Reinstatement in certain cases where conviction is nullified, or sentence is reduced

"27. (1) Subject to subregulation (2), a person who has been dismissed under regulation 25 may apply in writing to the Commissioner for reinstatement if:

(a)	the conviction that gave rise to the person's liability to the dismissal has been nullified; or
(b)	the sentence imposed for the conviction has been reduced, varied or replaced, and the sentence as reduced, varied or substituted is not one that satisfies the criteria stated in:

(i) subregulation 25 (1); or

(ii) subregulation 25 (2).

"(2) A person may not apply for reinstatement if, after having been dismissed, he or she has incurred a further conviction of a kind stated in subregulation (3).

"(3) A further conviction mentioned in subregulation (2) is a conviction that would have made the person who incurred it liable under regulation 25 to mandatory dismissal if the conviction had been incurred while the person was a member or staff member, unless:

(a) the conviction has been nullified; or

(b) the sentence imposed for the conviction has been reduced, paragraph (1) (b) applies. varied or replaced in the same manner as a sentence to which

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"(4) The Commissioner must reinstate a person who applies in accordance with subregulation (1) for reinstatement if, since being dismissed, the person has not incurred a further conviction, in Australia or overseas, for a criminal offence.

"(5) If a person applies in accordance with subregulation (1) for reinstatement and subregulation (4) does not apply, the Commissioner may reinstate the person.

"(6) If a person applies for reinstatement, the Commissioner must,

no later than 14 days after receiving the application:

(a) decide the application; and

(b) cause a notice of the decision to be served on the person.

"(7) A person who is reinstated under subregulation (4) is entitled

to restoration of any:

(a) entitlements; and (b) rank or level; and (c) seniority;

that the person lost through having been dismissed.

"(8) A person who is reinstated under subregulation (5):

(a) may be reinstated on any terms and conditions that the Commissioner sees fit to state; and

(b) may be granted any:

(i) entitlements; and (ii) rank or level; and (iii) seniority;

that the person lost through having been dismissed.

Other disciplinary provisions not excluded in cases of reinstatement

"28. If a person is dismissed and reinstated under this Part, those circumstances do not relieve the person of any liability under Part 3 to which the person would otherwise have been subject.

Delegation

"29. (1) The Commissioner may, by instrument, delegate to a Deputy Commissioner or a Senior Executive Commissioned Police Officer, or a staff member who is a Senior Executive Officer, any of the Commissioner's powers under this Part.

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"(2) A delegate may not perform a function or exercise a power under this Part in relation to a member or staff member who is senior or equal in rank or level to the delegate.".

12. Part V (Heading)

12.1 Omit "V", substitute "5".

13. Regulation 49 (Delegation)

13.1 Add at the end:

"(2) In spite of subregulation (1), a power under Part 4 may only be delegated in accordance with regulation 29.".

14. New Schedule 1

14.1 Add at the end of the Regulations:

SCHEDULE 1 Subparagraph 3 (b) (ii)

PROVISIONS OF GENERAL ORDERS AND GENERAL INSTRUCTIONS SPECIFIED FOR MEMBERS AND STAFF MEMBERS TO COMPLY WITH

PART 1—GENERAL ORDERS

Item	Order	Specified extent
1	1	the whole
2	3	sections 5 to 9 (inclusive)
3	5	the whole
4	6	the whole
5	6A	the whole
6	7	the whole
7	9	the whole
8	10	the whole

9	13	the whole
10	16A	section 20
11	17A	the whole
12	21	sections 14 to 32 (inclusive), 37A to 37o (inclusive) and 38 to 46 (inclusive)
13	24	the whole
14	24A	the whole

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SCHEDULE 1—continued

PART 2—GENERAL INSTRUCTIONS

Item	Instruction	Specified extent
1	1	the whole
2	3	the whole
3	4	the whole
4	5	the whole
5	6	the whole
6	8	the whole
7	10	the whole
8	11	the whole
9	12	the whole
10	13	the whole
11	15	the whole
12	17	the whole
13	18	the whole
14	19	the whole
15	20	the whole
16	21	the whole
17	22	the whole
18	23	the whole
19	25	the whole
20	26A	the whole
21	26B	the whole
22	27	the whole
23	27A	the whole
24	27B	the whole
25	27C	the whole
26	28	the whole
27	29	the whole
28	30	the whole
29	31	the whole
30	32	the whole
31	33	the whole
32	34	the whole
33	35	the whole

34	37	the whole
35	38	the whole
36	40	the whole
37	41	the whole
38	42	the whole

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15. Application

15.1 The amendments made by these Regulations do not apply to an act or omission that occurred before the commencement of these Regulations.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 1992. 8 September

2. Statutory Rules 1979 No. 211 as amended by 1980 No. 141; 1982 Nos. 90 and 281; 1984 No. 205; 1985 No. 292; 1988 Nos. 82 and 364; 1989 Nos. 332, 333 and 363; 1990 Nos. 45 and 408; 1992 No. 31.

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