Australian Federal Police (Approval of Screening Devices) Instrument 2021

Administered by Department of Home Affairs

Legislation au F2021L00225 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the Minister for Home Affairs

 

Australian Federal Police Act 1979

 

Australian Federal Police (Approval of Screening Devices) Instrument 2021

 

The Australian Federal Police Act 1979 (the Act) provides the statutory basis for the alcohol screening testing of Australian Federal Police (AFP) appointees in certain circumstances,  including the type of equipment to be used for the conduct of tests.

Section 40R of the Act permits the Minister to approve in writing certain devices of a type to be “approved screening devices” for the use of tests permitted under sections 40LA, 40M and 40N of the Act.

 

Section 40LA of the Act provides for the use of alcohol screening tests by an authorised manager where an AFP appointee is on duty and the manager reasonably suspects that the appointee is under the influence of alcohol. Section 40M provides for an AFP appointee who is on duty to be required by a person authorised by the Australian Federal Regulations 2018 (the Regulations) to undergo alcohol screening testing (or other testing), in accordance with the Regulations.  Section 40N provides for an AFP appointee, whether or not they are on duty, to be required by a person authorised by the Regulations to undergo alcohol screening testing (or other testing), after certain incidents have occurred, and in accordance with the Regulations.

 

Alcohol screening tests are conducted as a preliminary form of testing. 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. 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.

 

The Australian Federal Police (Approval of Screening Devices) Instrument 2021 (the Instrument) repeals the Australian Federal Police Act 1979 - Section 40R - Approval of Screening Device Instrument 2011, which is otherwise due to sunset on 1 October 2021.

Instrument

This Ministerial authorisation provides for 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:

(i)   under the law of a state or territory in which the breath screen is conducted; or

(ii)  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 subsection 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 testing devices that have been approved in the states, territories and external territories will enable AFP appointees operating in those jurisdictions to be subject to the alcohol screening test provisions in sections 40LA, 40M and 40N of the Act using devices that are available and approved for that purpose in those jurisdictions.

 

Written Ministerial approval of certain devices as “approved screening devices” under section 40R of the Act is required to enable the operation of sections 40LA, 40M and 40N, and does not otherwise change the effect of these provisions.

 

A Statement of Compatibility with Human Rights has been prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment A.

 

The Instrument commences on the day after it is registered on the Federal Register of Legislation.

Consultation

The AFP were consulted to ensure the list of approved screening devices in the Instrument was accurate and replicated the list of devices in the current 2011 instrument, as intended.

The Office of Best Practice Regulation (OBPR) has confirmed that a Regulatory Impact Statement is not required. The OBPR reference number is 43545.

 

 

 

 

 


Attachment A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Australian Federal Police (Approval of Screening Devices) Instrument 2021

 

This Disallowable Legislative Instrument (the Instrument) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in

Section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Disallowable Legislative Instrument
 

The Australian Federal Police Act 1979 (the Act) provides the statutory basis for the alcohol screening testing of all Australian Federal Police (AFP) appointees in certain circumstances, including the type of equipment to be used for the conduct of tests.

 

Section 40LA of the Act provides for the use of alcohol screening tests by an authorised manager where an AFP appointee is on duty and the manager reasonably suspects that the appointee is under the influence of alcohol. Section 40M provides for an AFP appointee who is on duty to be required by a person authorised by the Australian Federal Regulations 2018 (the Regulations) to undergo alcohol screening testing (or other testing), in accordance with the Regulations. Section 40N provides for an AFP appointee, whether or not they are on duty, to be required by a person authorised by the Regulations to undergo alcohol screening testing (or other testing), after certain incidents have occurred, and in accordance with the Regulations.

 

Alcohol screening tests are conducted as a preliminary form of testing. 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. 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.

This Instrument provides for 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:

(i)      under the law of a state or territory in which the breath screen is conducted; or

(ii)     in an external territory or a foreign country under the law of a state or territory.

 

The Australian Federal Police (Approval of Screening Devices) Instrument 2021 repeals the Australian Federal Police Act 1979 - Section 40R - Approval of Screening Device Instrument 2011, which was otherwise due to sunset on 1 October 2021.

 

Human rights implications

 

This Disallowable Legislative Instrument does not engage any of the applicable rights or freedoms.

 

The Act provides the statutory basis for the alcohol testing of all AFP appointees. The Australian Federal Police Regulations 2018 (the Regulations) makes further provision for matters relevant to the purpose of sections 40LA, 40M and 40N such as the conduct of alcohol screening and breath tests and the confidentiality of tests results (see section 40P of the Act). The Explanatory Statement for the Regulations, remade in 2018, provides detailed discussion of how alcohol screening and breath testing and related provisions engages applicable rights and freedoms.

 

While the provisions in the Act and Regulations that provide for the alcohol testing of AFP appointees and related matters engage applicable rights and freedoms, this instrument merely provides a list of approved devices which are deemed suitable by the Minister for use in tests conducted under sections 40LA, 40M and 40N and does not engage any rights and freedoms in and of itself.

 

Conclusion

 

This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

 

The Hon Peter Dutton MP

Minister for Home Affairs

 

 

Overview

The Australian Federal Police (Approval of Screening Devices) Instrument 2021 was enacted to ensure that the Australian Federal Police (AFP) can continue to use approved devices for alcohol screening tests on its appointees, addressing the impending expiration of the previous approval instrument from 2011. This instrument was issued by the Minister for Home Affairs under the authority granted by the Australian Federal Police Act 1979. The primary policy objective of this instrument is to maintain the capability for the AFP to conduct alcohol screening tests using devices that have been deemed suitable and approved, thus ensuring the enforcement of alcohol-related provisions within the AFP remains effective and consistent across different jurisdictions. The instrument identifies specific breath screening devices that are approved for use, aligning with existing standards used in various Australian states, territories, and external jurisdictions, and thereby facilitating the seamless continuation of alcohol screening practices. This instrument effectively repeals the outdated Australian Federal Police Act 1979 - Section 40R - Approval of Screening Device Instrument 2011, which was set to expire on 1 October 2021. The Minister's approval of the specified devices ensures that the AFP can maintain the use of reliable and authorised equipment for alcohol screening, complying with both federal and jurisdictional regulations. This approach supports the overarching aim of maintaining high professional standards and operational integrity within the AFP.

Scope and Application

The Australian Federal Police Act 1979 provides the statutory basis for the alcohol screening testing of Australian Federal Police (AFP) appointees in certain circumstances, including the type of equipment to be used for the conduct of tests. The Act applies to AFP appointees, and its provisions allow for alcohol screening tests to be conducted in specific scenarios such as when an authorised manager reasonably suspects an appointee is under the influence of alcohol while on duty, or when an appointee is required to undergo testing after certain incidents. The Australian Federal Police (Approval of Screening Devices) Instrument 2021 complements the Act by specifying approved screening devices for these tests, such as the Lion Alcolmeter SD-400 and the Alcolizer LE breath screening devices, or any device approved for indicating alcohol presence under state or territory law. This Instrument has a national reach and does not exclude any specific persons or entities, instead providing a clear framework for the devices that can be used in alcohol screening tests. The Instrument repeals the 2011 approval device instrument, ensuring that the list of approved devices remains current and effective.

Key Provisions

The Australian Federal Police (Approval of Screening Devices) Instrument 2021 (the Instrument) under the Australian Federal Police Act 1979 (the Act) sets out the devices that can be approved for alcohol screening tests on Australian Federal Police (AFP) appointees. Section 40R of the Act allows the Minister to approve certain devices as “approved screening devices” for alcohol screening tests conducted under sections 40LA, 40M, and 40N of the Act. These tests are used to determine if an AFP appointee is under the influence of alcohol. Specifically, section 40LA allows an authorised manager to conduct a test if they reasonably suspect that an appointee is under the influence while on duty. Section 40M mandates that an appointee on duty may be required to undergo testing by an authorised person, as per the Australian Federal Regulations 2018 (the Regulations). Section 40N requires an appointee to undergo testing after certain incidents, regardless of whether they are on duty, also as per the Regulations. Alcohol screening tests are a preliminary step to identify the presence of alcohol in a person’s breath using an “approved screening device,” which is a portable handheld device. If alcohol is detected, the person may be required to take a full breath test to determine the amount of alcohol in their blood. The obligations imposed by the Act on parties and entities include the requirement that alcohol screening tests on AFP appointees are conducted using only devices approved by the Minister under section 40R. This means that only devices listed in the Instrument can be used for such tests. The Act and Regulations provide for the conduct of these tests, the confidentiality of test results, and other related matters. The AFP are required to use the approved devices for all alcohol screening tests, ensuring that the tests are conducted in accordance with the Act and Regulations. The Regulations, as detailed in their Explanatory Statement, discuss how alcohol screening and breath testing engage applicable rights and freedoms. The Instrument does not create new offences or penalties but provides the legal framework for the use of approved devices in alcohol screening tests. However, failure to comply with the requirements of the Act and Regulations, including using an unapproved device for a test, could result in disciplinary action against the AFP appointee or other consequences as specified in the Regulations. The Act and Regulations, together with the Instrument, ensure that alcohol screening tests are conducted in a standardised and approved manner, maintaining the integrity and reliability of the testing process.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.