EXPLANATORY STATEMENT
Approval of screening devices used to alcohol test AFP appointees
Australian Federal Police Act 1979
Background
The Australian Federal Police Act 1979 (the Act) provides the statutory basis for the alcohol testing of all Australian Federal Police (AFP) appointees whilst on duty, including the type of equipment to be used for the conduct of those tests.
Section 40M provides for the random alcohol testing of AFP appointees and section 40N provides for the alcohol testing of AFP appointees following certain critical incidents in which they have involvement.
Section 40M and 40N were amended by the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011 to allow alcohol screening tests to take place in addition to the alcohol breath tests that were already provided for under the sections. An alcohol screening test is conducted using an “approved screening device” which is a portable hand held device used for identifying the presence of alcohol on a person’s breath.
Alcohol screening tests are conducted as a preliminary form of testing. Where a preliminary alcohol screening test shows that alcohol is present on the subject’s breath they may be required to proceed to a full breath test which can determine the amount of alcohol in the person’s blood.
Section 40R of the Act permits the Minister, to approve in writing certain devices to be “approved screening devices” for the purpose of s 40M and 40N.
Instrument
This Ministerial authorisation provides the following breath screening devices to be “approved screening devices”.
- the Lion Alcolmeter SD-400 breath screening device;
- the Alcolizer LE breath screening device; and
- a device that is “exhaled into” and has been approved for the purpose of indicating whether alcohol is present in the blood of a person:
(a) under the law of a state or territory in which the breath screen is conducted; or
(b) in an external territory or a foreign country under the law of a state or territory.
The Lion Alcolmeter SD-400 and the Alcolizer LE are breath screening devices that are currently approved for use in random breath testing roadside stops in the Australian Capital Territory under Section 5(2) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) and are used in a number of other Australian jurisdictions for the same purpose.
The authorisation for the use of alcohol screening test devices that have been approved in the states, territories and external territories will enable AFP employees operating in those jurisdictions to be subject to the alcohol screening test provisions in section 40M and 40N of the Act using devices that are available and approved for that purpose in those jurisdictions.
Consultation has not been undertaken in relation to the approval of this legislative instrument for the following reasons:
- The effect of the instrument is minor or machinery in nature and does not substantially alter existing arrangements. Written approval of certain devices as “approved screening devices” under section 40R merely enables the operation of sections 40M and 40N and does not change the effect of these provisions. This situation is consistent with paragraph 18(2)(a) of the Legislative Instruments Act 2003 which envisages circumstances in which the nature of the instrument is such that consultation may be unnecessary or inappropriate.
- The Australian Federal Police Association (AFPA) was consulted prior to the amendments to sections 40M, 40N and 40R made by the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011.
- The AFPA was also consulted prior to the original introduction of section 40R which was introduced into the Act in December 2006 by the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 and provides for the process of Ministerial approval of certain alcohol screening devices.
Overview
The Australian Federal Police Act 1979, enacted to provide the statutory basis for the regulation of the Australian Federal Police (AFP), was amended by the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011 to include provisions for alcohol screening tests for AFP appointees. This legislative update was intended to introduce a preliminary form of alcohol testing using approved screening devices in addition to the mandatory breath tests. The policy objective behind these amendments was to ensure that AFP appointees, especially those involved in critical incidents, are subjected to a preliminary alcohol screening test to identify the presence of alcohol on their breath before proceeding to a full breath test. This measure was aimed at enhancing the efficacy of alcohol testing within the AFP, aligning with existing testing protocols used in various Australian jurisdictions.
The Ministerial authorisation under section 40R of the Act permits the Minister to approve specific devices as "approved screening devices," ensuring they meet the necessary criteria for use in alcohol testing of AFP appointees. This authorisation includes the Lion Alcolmeter SD-400 breath screening device, the Alcolizer LE breath screening device, and any device approved under state or territory laws or in foreign jurisdictions for indicating the presence of alcohol in a person's blood. This legislative instrument does not require consultation as its effect is minor and machinery in nature, merely enabling the operation of sections 40M and 40N without altering their substantive effect, in accordance with the Legislative Instruments Act 2003.
Scope and Application
The Australian Federal Police Act 1979, as amended by the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011, provides for the alcohol testing of all Australian Federal Police (AFP) appointees while they are on duty. This Act specifies the use of approved screening devices for alcohol testing, which are portable handheld devices designed to detect the presence of alcohol on a person’s breath. These screening devices serve as a preliminary form of testing and, if they indicate the presence of alcohol, the individual may be required to undergo a full breath test to determine the amount of alcohol in their blood. Section 40R of the Act allows the Minister to approve in writing certain devices to be used as “approved screening devices” for the purposes of sections 40M and 40N. The Ministerial authorisation includes specific devices such as the Lion Alcolmeter SD-400 breath screening device and the Alcolizer LE breath screening device, as well as any device that is approved under state or territory laws in Australia, an external territory, or a foreign country for indicating the presence of alcohol in a person’s blood. This authorisation ensures that AFP employees operating in different jurisdictions can be subject to alcohol screening tests using devices that are approved and available in those specific jurisdictions.
Key Provisions
The Australian Federal Police Act 1979 (the Act) includes specific provisions for the alcohol testing of AFP appointees. Section 40M addresses the random alcohol testing of AFP appointees while on duty, and Section 40N pertains to alcohol testing following certain critical incidents in which they are involved. These sections were amended by the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011 to include the use of alcohol screening tests, which are conducted using approved screening devices. These devices are portable hand-held tools used to detect the presence of alcohol on a person’s breath. Section 40R of the Act provides the mechanism for the Minister to approve certain devices as “approved screening devices” for the purposes of Sections 40M and 40N.
The obligations under the Act require the Minister to approve specific devices that can be used for alcohol screening tests. This approval is necessary for the devices to be recognised as "approved screening devices" under the Act. The approved devices include the Lion Alcolmeter SD-400, the Alcolizer LE, and any device approved under state or territory laws for indicating alcohol presence in the blood. This ensures that AFP employees operating in various jurisdictions can be tested using devices that are already approved for use in those areas. The Act aims to standardise the alcohol testing process across different jurisdictions to ensure consistency and reliability.
Failure to comply with the provisions of the Act, including using unapproved devices for alcohol screening tests, can have legal consequences. While the specific penalties are not detailed in the provided text, breaches of statutory requirements under the Act can generally lead to disciplinary actions against the AFP appointees, as well as potential civil or criminal liability depending on the severity and context of the breach. The use of unapproved screening devices can undermine the integrity of the testing process and may result in inaccurate test results, which can have serious implications for both the individual tested and public safety.
In summary, the Australian Federal Police Act 1979, as amended, requires the approval of specific alcohol screening devices for use in testing AFP appointees. These devices must be approved by the Minister to ensure they meet the necessary standards and are recognised under the law. The obligations include the use of approved devices for alcohol screening, which is a preliminary step that can lead to further breath tests to determine the exact alcohol levels in a person's blood. The consequences of not adhering to these provisions can result in disciplinary actions and potential legal repercussions for those involved.