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 40LA of the Act provides for the use of alcohol screening tests where there is reasonable suspicion that an AFP appointee is on duty and under the influence of alcohol. 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 40LA.
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 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 40LA of the Act using devices that are available and approved for that purpose in those jurisdictions.
Overview
The Australian Federal Police Act 1979, enacted to establish the statutory framework for the Australian Federal Police, includes provisions for alcohol testing of AFP appointees while on duty. This Act sought to address the need for standardised procedures and equipment for such tests to ensure consistency and reliability across jurisdictions. The Australian Federal Police Act 1979 enables the Minister to approve specific devices for alcohol screening tests, a role carried out through the instrument F2010L02686. This Ministerial authorisation recognises certain breath screening devices, including the Lion Alcolmeter SD-400 and the Alcolizer LE, as approved screening devices for use under section 40LA of the Act. The policy objective is to ensure that AFP employees can be subjected to alcohol screening tests using devices that are recognised and approved for this purpose in various jurisdictions, thereby maintaining a uniform standard of alcohol testing across different regions.
Scope and Application
The Australian Federal Police Act 1979, as amended by the Ministerial authorisation F2010L02686, regulates the alcohol testing of Australian Federal Police (AFP) appointees while they are on duty. This Act mandates the use of "approved screening devices" for alcohol screening tests when there is reasonable suspicion that an AFP appointee is under the influence of alcohol. These devices, which are portable handheld tools for identifying alcohol presence in a person's breath, serve as a preliminary form of testing, potentially leading to a full breath test that measures blood alcohol levels. The specified approved screening devices include the Lion Alcolmeter SD-400 and the Alcolizer LE, both of which are already approved for use in random breath testing in the Australian Capital Territory and other jurisdictions. Additionally, any device approved for alcohol indication under the laws of a state, territory, or external territory can be used if it meets the criteria outlined in the Act. This legislative framework ensures uniformity and legal compliance in the alcohol screening practices of AFP appointees across various jurisdictions.
Key Provisions
The primary operative sections of this legislation are Sections 40LA and 40R of the Australian Federal Police Act 1979 (the Act). Section 40LA allows for the use of alcohol screening tests on AFP appointees when there is reasonable suspicion they are under the influence of alcohol while on duty. This section specifies that these tests must be conducted using an "approved screening device," which is a portable handheld device that identifies the presence of alcohol in a person’s breath. Section 40R grants the Minister the authority to approve certain devices in writing as "approved screening devices" for the purposes of Section 40LA.
The Act imposes several obligations on the Australian Federal Police (AFP) and its appointees. The AFP is responsible for ensuring that alcohol screening tests are conducted in accordance with the provisions of Section 40LA. Appointees must comply with the testing process, which includes submitting to alcohol screening tests when required. The Act also mandates that these tests are performed using only the approved screening devices specified by the Minister under Section 40R. The approved devices mentioned in the Ministerial authorisation include the Lion Alcolmeter SD-400 breath screening device, the Alcolizer LE breath screening device, and any other devices approved under state or territory laws where the breath screen is conducted, or in external territories or foreign countries.
Failure to comply with the requirements of the Act can result in various legal consequences. Although the specific offences and penalties are not detailed in the text, it is implied that breaches of the Act could lead to civil or criminal penalties. Given that the Act regulates alcohol testing for AFP appointees, non-compliance could potentially result in disciplinary actions against AFP appointees, or in more severe cases, legal action against the officers involved. The exact nature and extent of these penalties would typically be determined by the specific provisions of the Act and any related regulations or guidelines.