EXPLANATORY STATEMENT STATUTORY RULES 1989 NO 363
Issued by the Authority of the Minister for Justice
Australian Federal Police Act 1979
Australian Federal Police (Discipline)
Regulations (Amendment)
The purpose of these amendments to the Australian Federal Police (Discipline) Regulations is:
a) to apply, with necessary modifications, the existing Australian Federal Police discipline system to staff members who will cease to be subject to the Public Service Act and Regulations and will come under the Australian Federal Police Act 1979. The creation of the “unified workforce” is an important element of the restructuring of the Australian Federal Police; and
b) to restate and clarify the situation and extend the application to staff members regarding the use in disciplinary proceedings only of evidence obtained under an exception to the rule against self incrimination.
Notes on individual clauses are set out below:
Regulation 1 defines the ‘Principal Regulations’ to mean the Australian Federal Police (Discipline) Regulations.
Regulation 2 amends the heading to Division I of Part II of the Principal Regulations to include staff members.
Regulation 3 amends paragraph (e) of regulation 3 of the Principal Regulations to include reference to both male and female gender.
Regulation 4 amends regulation 5 of the Principal Regulations which deals with obeying orders, by referring to a lawful direction, instruction or order rather than a lawful instruction or order. This is designed to clarify the breadth of the application of the provision.
In addition, currently a member’s privilege against self-incrimination has been held to have been abrogated in circumstances where he or she is required to answer questions put to him or her in the course of a disciplinary proceeding (Police Service Board v Morris (1985) 156CLR385, which concerned equivalent Victorian provisions and which has been applied to the AFP disciplinary system in Commissioner of Police v Sloane - unreported decision of the Federal Police Disciplinary Tribunal of 25 September 1985).
Regulation 5 is amended so as to:
(i) in effect, explicitly restate the current law;
(ii) extend its application to staff members; and
(iii) clarify that any answers obtained as a result of the abrogation of the privilege against self-incrimination are only admissible in the disciplinary proceedings in which the answers were provided or in any other subsequent disciplinary proceedings.
Regulation 5 adapts regulation 8 of the Principal Regulations which deals with property entrusted to, received by, or in possession of members, to apply to staff members as well as members and to include a reference to both male and female gender.
Regulation 6 adapts paragraph (e) of regulation 10 (‘improper conduct’) of the Principal Regulations to apply to staff members as well as members and to apply to both male and female gender.
Regulation 7 adapts regulation 11 (‘member not to drink or take drugs or be on licensed premises’) of the Principal Regulations to apply to staff members as well as members and to include reference to both male and female gender.
Regulation 8 omits paragraph (1)(a) of regulation 13 (‘disclosure of information’) of the Principal Regulations as express provision about the non disclosure of information is made in section 48 of the Australian Federal Police Legislation Amendment (No 2) Act 1989.
Regulations 9 and 10 adapt regulation 15 (‘member not to solicit or receive gifts’) and 17 (‘bankrupt members’) of the Principal Regulations so as to apply them to staff members as well as members and to include reference to both male and female gender.
Regulation 11 amends paragraph (1)(b) of regulation 18 (‘disciplinary offences’) of the Principal Regulations to include reference to both male and female gender.
Regulation 12 adapts regulation 19 (‘institution of proceedings in relation to disciplinary offences’) of the Principal Regulations to apply to staff members as well as members. The amendment distinguishes between proceedings in relation to staff members and members; under the Complaints (Australian Federal Police) Act 1981 members can be dealt with by the Disciplinary Tribunal or the Commissioner while staff members must be dealt with by the Commissioner.
Regulation 13 adapts regulation 22 (‘penalties’) of the Principal Regulations to apply to staff members as well as members.
Regulation 14 adapts regulation 46 (‘seniority’) of the Principal Regulations to apply to staff members as well as members with respect to determining seniority in respect to command and control functions only.
Regulation 15 repeals existing regulations 48, 48A and 49 (which deal with, ‘service of notices’, ‘delegation by the Minister’ and ‘delegation by the Commissioner’) of the Principal Regulations which are no longer necessary. The
regulation also inserts new regulation 48 which deals with the application of General Orders and Instructions to staff members. New regulation 49 deals with the Commissioner’s powers of delegation under the Principal Regulations.
Regulation 16 amends the Principal Regulations in accordance with the Schedule by adapting provisions to apply to staff members as well as members and to refer to both male and female gender.
Regulation 17 provides that the Principal Regulations as in force immediately before the commencement of these Regulations will continue to apply to disciplinary proceedings started before that time.
| Authority: | Section 70 of the Australian Federal Police Act 1979 |