EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO 82
ISSUED BY THE AUTHORITY OF THE MINISTER FOR JUSTICE
AUSTRALIAN FEDERAL POLICE (DISCIPLINE) REGULATIONS (AMENDMENT)
The primary purpose of these amendments to the Australian Federal Police (Discipline) Regulations (‘the Discipline Regulations’) is to incorporate provisions relating to a new disciplinary procedure that may be applied in cases involving minor breaches of discipline. This new procedure is to be available as an alternative to the charging of a member of the Australian Federal Police with a breach of discipline where the member indicates that he or she wishes to accept the offer of a caution.
The Complaints (Australian Federal Police) Act 1981 (‘the Complaints Act’) was amended by s.3 of the Statute Law (Miscellaneous Provisions) Act 1987 as part of the scheme to establish the new cautionary procedure. Under s.66A of the Complaints Act where a member does not accept the offer, the Commissioner is required to institute disciplinary proceedings against the member in respect of the breach of discipline. This provides the member with the opportunity of having his or her case heard and determined by the Federal Police Disciplinary Tribunal. The Disciplinary Regulations are being amended to provide for the institution of proceedings against a member in accordance with s.66A of the Complaints Act.
Notes on individual clauses are set out below.
Regulation 1: Principal Regulations
This regulation defines ‘Principal Regulations’ to mean the Discipline Regulations.
Regulation 2: Interpretation
This regulation removes the redundant reference to ‘a commissioned protective service officer’ in r.2 of the Discipline Regulations as the reference to such an officer in the Australian Federal Police Act 1979 has been deleted.
Regulation 3: Institution of proceedings in relation to disciplinary offences
This regulation amends r.19 of the Discipline Regulations by inserting a new subr.19(ID) which prevents the Commissioner from instituting disciplinary proceedings against a member under r.19 where the member has accepted a caution under rr.19AA or 19B in relation to that alleged offence.
Regulation 4: Cautions
This regulation inserts new 19AA which provides for the new procedure of offering a member a caution for a minor disciplinary offence. Subr.19AA(1) provides that where a member may have committed a disciplinary offence of a kind appropriate to be dealt with by way of a caution, the Commissioner may offer the member a caution.
Subr. 19AA(2) requires the Commissioner to offer a caution by serving a notice offering a caution on the member to whom the offer is made.
Under subr.19AA(3) the offer of a caution remains open for 14 days from the service of the notice.
Subr.19AA(4) requires that a notice offering a caution to a member:
(a) be in writing;
(b) be signed by the Commissioner or a person authorised by the Commissioner;
(c) state the nature and give particulars of the alleged disciplinary offence;
(d) state that the offer remains open for 14 days from the date of service of the notice;
(e) request the member to notify the Commissioner within 14 days whether or not the member accepts the offer of a caution;
(f) state that where the member does not accept the offer of a caution the Commissioner shall institute disciplinary proceedings against the member; and
(g) set out the provisions of s.66A of the Complaints Act.
Subr.19AA(5) provides that where a member wishes to accept a caution the member may do so by writing ‘accepted’ on the notice, signing it, and returning it to the Commissioner.
Regulation 5: Institution of proceedings under the Complaints Act
This regulation inserts a new subr.19A(1A) in the Discipline Regulations to provide for the institution of proceedings against a member in accordance with the requirements of s.66A of the Complaints Act. Section 66A of the Complaints Act provides that where a member is offered a caution and does not accept it then the Commissioner shall institute disciplinary proceedings against the member in respect of the breach of discipline.
Subr.19A(2) of the Discipline Regulations is amended by inserting a reference to new subr.19A(1).
Regulation 6: Cautions under the Complaints Act
This regulation inserts a new r.19B in the Discipline Regulations. New subr.19B(1) requires the Commissioner to offer a member a caution for a disciplinary offence where:
(a) the Commissioner, under subs.11(4) of the Complaints Act, is required to give effect to proposal put by him to the Ombudsman that a member be cautioned; or
(b) the Attorney-General directs, under subs 11(7) of the Complaints Act, that action should be taken by way of cautioning a member.
Subr.19B(2) requires the Commissioner to offer a caution by serving a notice offering a caution on the member to whom the offer is made.
Under subr.19B(3) the offer of a caution remains open for 14 days from the service of the notice.
Subr.19B(4) requires that a notice offering a caution to a member:
(a) be in writing;
(b) be signed by the Commissioner or a person authorised by the Commissioner;
(c) state the nature and give particulars of the alleged disciplinary offence;
(d) state that the offer remains open for 14 days from the date of service of the notice;
(e) request the member to notify the Commissioner, within 14 days whether or not the member accepts the offer of a caution;
(f) state that where the member does not accept the offer of a caution the Commissioner shall institute disciplinary proceedings against the member; and
(g) set out the provisions of s.66A of the Complaints Act.
Subr. 19B(5) provides that where a member wishes to accept a caution the member may do so by writing ‘accepted’ on the notice, signing it and returning it to the Commissioner.
Regulation 7: Penalties
This regulation amends r.22 of the Discipline Regulations by omitting paras. 22(1)(aa) (admonishment) and 22(1)(a) (reprimand) and substituting provisions which allow the Commissioner to (a) admonish the member, (ab) caution the member and (ac) reprimand the member as penalties for a breach of discipline. The penalties appear in the order of their severity - a caution being a more severe penalty than an admonishment but less severe than a reprimand.