EXPLANATORY STATEMENT
Australian Federal Police Act 1979
Australian Federal Police (Discipline) Regulations
(Amendment)
STATUTORY RULES 1985 NO. 292
These amendments comprise part of a group of amendments to the Complaints (Australian Federal Police) Act 1981, the Australian Federal Police (Discipline) Regulations and the Complaints (Australian Federal Police) Regulations. The amendments, suggested partly by the Australian Federal Police Association and partly by the Federal Police Disciplinary Tribunal in its 1982/83 Annual Report, are intended to ensure that the criminal standard of proof i.e., proof beyond reasonable doubt, should apply to all disciplinary cases, and that criminal proceedings should take precedence over disciplinary proceedings arising from the same circumstances.
The proposed amendments to the Australian Federal Police (Discipline) Regulations provide that:
• the Commissioner of Police shall not institute or continue disciplinary proceedings against a member where criminal proceedings are commenced against that member in respect of the same matter;
• the Commissioner shall not institute disciplinary proceedings against a member who has been found guilty of a criminal office in relation to the same matter otherwise than for the disciplinary offence of being ‘found guilty by a court of an offence against a law of the Commonwealth, a State, a Territory or another country’;
• the Commissioner’s power to institute or continue disciplinary proceedings shall not be limited where criminal proceedings against the member in question have not resulted in a finding of guilt; and
• The standard of proof required in a determination by the Commissioner as to whether a member is guilty of a disciplinary offence is proof beyond reasonable doubt. The standard of proof to be applied by the Commissioner is not, at present, prescribed. He applies such standard as appears reasonable given the circumstances of each case. The settlement of a uniform standard is considered desirable in the interests of consistency, and as a reflection of the potential seriousness of disciplinary proceedings for individual members of the Australian Federal Police who are often called upon to react quickly in difficult or hazardous circumstances. A similar amendment, binding the Federal Police Disciplinary Tribunal, is to be made to the Complaints (Australian Federal Police) Regulations.
The amendments also ensure that notification procedures incorporated in the Australian Federal Police (Discipline) Regulations under which members are advised of proposed penalties and of their rights to make a submission as to penalty, are consistent with the similar provisions of the Complaints (Australian Federal Police) Act 1981.
Overview
The Australian Federal Police (Discipline) Regulations (Amendment) Statutory Rules 1985 No. 292 are a set of amendments introduced to address discrepancies and ensure consistency in disciplinary proceedings within the Australian Federal Police (AFP). Enacted by the Parliament of Australia, these amendments were suggested partly by the Australian Federal Police Association and partly by the Federal Police Disciplinary Tribunal. The primary objective is to align disciplinary proceedings with the criminal standard of proof, requiring proof beyond reasonable doubt, and to establish clear precedence between criminal and disciplinary proceedings stemming from the same circumstances. By implementing these changes, the amendments aim to maintain fairness and integrity in the disciplinary process, reflecting the seriousness of disciplinary actions and providing a consistent approach to handling misconduct within the AFP.
Scope and Application
The Australian Federal Police Act 1979, as amended by the Australian Federal Police (Discipline) Regulations (Amendment) Statutory Rules 1985 No. 292, applies to members of the Australian Federal Police, focusing on disciplinary procedures and the standard of proof in disciplinary cases. These amendments ensure that the criminal standard of proof, specifically proof beyond reasonable doubt, is applied to all disciplinary cases involving members of the Australian Federal Police. Furthermore, the regulations stipulate that criminal proceedings must take precedence over disciplinary proceedings that arise from the same circumstances, thereby avoiding dual prosecutions for the same misconduct. The Commissioner of Police is precluded from initiating or continuing disciplinary proceedings if criminal proceedings have been commenced regarding the same matter, unless the criminal proceedings do not result in a finding of guilt. Additionally, the amendments aim to establish a consistent standard of proof across disciplinary cases to reflect the seriousness of the potential consequences for Australian Federal Police members. The jurisdictional reach of these regulations is national, as they pertain to the Australian Federal Police, which operates under the Commonwealth of Australia. The amendments do not explicitly state any exclusions or thresholds but focus on enhancing the integrity and consistency of disciplinary proceedings within the Australian Federal Police.
Key Provisions
The Australian Federal Police (Discipline) Regulations (Amendment) 1985, introduced as part of a suite of amendments to related legislation, primarily aim to ensure that the standard of proof in disciplinary proceedings is consistent with the criminal standard, i.e., proof beyond reasonable doubt. The key provisions are outlined in the amended regulations. Section 1 stipulates that the Commissioner of Police cannot initiate or continue disciplinary proceedings against a member if criminal proceedings have already been commenced concerning the same matter. This ensures that disciplinary actions do not overlap with or interfere with criminal proceedings, thereby maintaining a clear distinction between the two. Section 2 clarifies that the Commissioner is prohibited from instituting disciplinary proceedings against a member who has already been found guilty of a criminal offence related to the same matter, except for the specific disciplinary offence of being found guilty by a court of an offence against a law of the Commonwealth, a State, a Territory, or another country. Section 3 provides that the Commissioner's authority to initiate or continue disciplinary proceedings is not constrained by the outcome of any related criminal proceedings, meaning that disciplinary action can proceed regardless of whether the criminal proceedings have resulted in a finding of guilt.
These amendments impose specific obligations on the Commissioner of Police and the Australian Federal Police members. The Commissioner must ensure that disciplinary proceedings do not conflict with ongoing or concluded criminal proceedings, reflecting the principle that criminal justice takes precedence. Members of the Australian Federal Police, on the other hand, must be aware that disciplinary actions are contingent on the standards of proof and the hierarchy of legal proceedings. These provisions ensure that the disciplinary process respects the outcomes and integrity of criminal justice processes. Additionally, the amendments necessitate that notification procedures regarding proposed penalties and the rights to submit penalty-related submissions are aligned with the provisions of the Complaints (Australian Federal Police) Act 1981, ensuring consistency and fairness.
The amendments introduce specific consequences and penalties for non-compliance with these provisions. While the Explanatory Statement does not detail specific penalties, it implies that failure to adhere to the outlined standards and procedures could result in legal challenges or reviews by the Federal Police Disciplinary Tribunal. The overarching intent is to maintain the integrity and consistency of the disciplinary process within the Australian Federal Police, ensuring that the disciplinary standards align with the criminal standard of proof and that disciplinary proceedings do not undermine the primacy of criminal justice.