EXPLANATORY STATEMENT
Issued by the authority of Commissioner of the Australian Federal Police and the Commonwealth Ombudsman
Australian Federal Police Act 1979
Determination 2006/ to determine AFP Categories of Conduct
Purpose of Determination 2006/
Complaints about the conduct of Australian Federal Police appointees are dealt with in Part V of the Australian Federal Police Act 1979 (the Act). Section 40RH of the Act stipulates that an AFP conduct issue is an issue of whether an AFP appointee has engaged in conduct that contravenes the professional standards of the AFP, or engaged in corrupt conduct.
The Determination stands on its own – it does not affect, and is not affected by, other systems for characterising conduct or actions that may be used by the AFP or the Ombudsman’s office. The Commissioner pursuant to section 40RC of the Act independently establishes the professional standards of the AFP to which all AFP appointees must comply. Any breach of the professional standards of the AFP by an AFP appointee may lead to a complaint being dealt with pursuant to Part V of the Act. This Determination does not incorporate references to specific AFP orders, guidelines or directions, other than the AFP Code of Conduct which is publicly available. Conduct which breaches those other instruments would be likely to fall within one or more of the categories, depending on the circumstances of the individual case, for the purpose of the Determination or the Act.
The category into which a particular piece of conduct falls determines how it will be dealt with by the AFP, the Ombudsman’s office and the Australian Commission for Law Enforcement Integrity. The four categories represent matters which must be dealt with under the Act.
The categorisation is for the purpose of investigation and oversight, and is based on the conduct as characterised when it comes to the attention of the AFP, not on how it was or might be characterised following investigation.
The Categories of Conduct in the Determination
Categories 1, 2 and 3 relate to general conduct and category 4 relates to corruption issues. The Determination between the Commissioner and the Ombudsman relates only to categories 1, 2 and 3. Sections 40RK, 40RN, 40RO, 40RP and 40RQ of the Act establish that there are four categories of conduct with the following characteristics:
- Category 1 conduct which is the least serious class of conduct which relates to minor management matters or customer service matters; or reveals a need for improvement in the performance of the AFP appointee concerned; and does not warrant being treated as category 2 or category 3 conduct.
- Category 2 conduct is minor misconduct by an AFP appointee; or inappropriate conduct that reveals unsatisfactory behaviour by an AFP appointee; and conduct of that kind would otherwise be category 1 conduct; and warrants, because of its repeated nature, being treated as category 2 conduct for the purposes of this Act; and conduct of that kind does not warrant being treated as category 3 conduct for the purposes of this Act.
- category 3 conduct is serious misconduct by an AFP appointee; or raises the question whether termination action should be taken in relation to an AFP appointee; or involves a breach of the criminal law, or serious neglect of duty, by an AFP appointee; and conduct of that kind does not raise a corruption issue; and
- category 4 conduct is conduct that gives rise to a corruption issue.
The articulation of what makes up each Category of conduct in this determination is based on an assessment of the gravity of the conduct should it occur and whether that particular conduct relevantly fits the description of Category 1,2 or 3 conduct as defined in the Act.
Categories are not comprehensive or fixed:
- If there is no category specified for a type of conduct it falls into category 3;
- If conduct could fall under two or more categories, it falls under the higher or highest of them. For example, conduct that may otherwise be category 2 would be category 4 if it involved a corruption aspect;
- A single action may fall within more than one class within a category (for example, a false statement may also amount to an offence) and within classes in different categories (for example, unwarranted attention in category 2 may also be unlawful discrimination in category 3)
- The category for a matter may change up or down as more information becomes available.
Consultation
Under s40RM(1) of the Act, and having been satisfied in terms of s40RN, s40RO and s40RP of the Act, the Commonwealth Ombudsman and the Commissioner of the Australian Federal Police agree as provided in this Determination.
AFP Appointees have been advised of the context, scope and impact of this Determination as it relates to the handling of breaches of the professional standards of the AFP. The Commissioner and Commonwealth Ombudsman have sole responsibility for jointly agreeing to the categorisation of conduct which breaches the professional standards of the AFP.