Australian Federal Police (Discipline) Regulations (Amendment) 1993 No. 306
EXPLANATORY STATEMENT
STATUTORY RULES 1993 No. 306
Issued by the Authority of the Minister for Justice
Australian Federal Police Act 1979
Australian Federal Police (Discipline) Regulations (Amendment)
The purpose of the amendment to regulation 19 is to require the Commissioner of the Australian Federal Police (the Commissioner) to express a view as to the penalty or range of penalties which the Commissioner considers appropriate when disciplinary proceedings are instituted. The purpose of the amendments to subregulation 21(2) are to reflect current drafting practice, and to replace the existing standard of proof which is applied in disciplinary proceedings before the Federal Police Disciplinary Tribunal (the Tribunal). Under the current regulations, the criminal standard of proof beyond reasonable doubt is required. This is to be replaced by the civil standard of proof on the balance of probabilities.
Regulation 1 provides that the Australian Federal Police (Discipline) Regulations are amended.
Regulation 2 amends the present regulation 19, which deals with the institution of disciplinary proceedings by the Commissioner, by inserting new subregulations 19(4A) and (4B). Subregulation 19(4A) requires the Commissioner to express a view as to the penalty or range of penalties which the Commissioner considers appropriate, given the facts available at the time of institution of proceedings. Subregulation 19(4B) ensures that the functions of the Tribunal and Federal Court of Australia are not affected by a view expressed by the Commissioner under subregulation 19(4A) in relation to the imposition or review of a penalty. A capricious or unreasonable decision by the Commissioner imposing a higher penalty would be reviewable under the Administrative Decisions (Judicial Review) Act 1977 or under the appeals procedure in the Complaints (Australian Federal Police) Act 1981 (the Complaints Act) as being a penalty unauthorised by law or constituting an error of law.
It should be noted that these amendments do not apply to charges made as a result of an investigation under the Complaints Act.
Subregulation 3.1 amends subregulation 21(2) by substituting "must" for "shall" to reflect current drafting practice.
Subregulation 3.2 amends subregulation 21(2), which applies the criminal standard of proof beyond reasonable doubt in proceedings before the Tribunal. The amendment applies the civil standard of proof on the balance of probabilities in such proceedings. The level of proof required in these disciplinary proceedings will not be significantly different as a result of this change where the breach of discipline is serious. This is because the test provides for a higher standard of proof depending on the seriousness of the issue and the gravity of consequences flowing from an adverse finding of the Tribunal. The amendment ensures that the AFP's internal disciplinary scheme is an effective personnel management tool, and is consistent with the standard of proof required in most other Australian police forces. A similar amendment has been made to the Complaints (Australian Federal Police) Regulations.
Overview
The Australian Federal Police (Discipline) Regulations (Amendment) 1993 No. 306 was enacted to address deficiencies in the disciplinary procedures of the Australian Federal Police (AFP), aligning them more closely with common practice in other Australian police forces. This amendment was made under the authority of the Minister for Justice and pursuant to the Australian Federal Police Act 1979. The primary objective of these amendments is to ensure that the internal disciplinary scheme of the AFP functions effectively as a personnel management tool. This is achieved by requiring the Commissioner to express a view on the appropriate penalty or range of penalties when instituting disciplinary proceedings, and by modifying the standard of proof required in such proceedings from the criminal standard of proof beyond reasonable doubt to the civil standard of proof on the balance of probabilities. This change aims to maintain an appropriate level of proof depending on the seriousness of the disciplinary issues and the consequences of adverse findings, while aligning the AFP's disciplinary processes with those of other police forces in Australia.
Scope and Application
The Australian Federal Police (Discipline) Regulations (Amendment) 1993 No. 306 applies to the Commissioner of the Australian Federal Police, who is required to express a view on the appropriate penalty or range of penalties when disciplinary proceedings are instituted. This amendment ensures that the Commissioner's view does not affect the functions of the Federal Police Disciplinary Tribunal and the Federal Court of Australia. Furthermore, the amendment changes the standard of proof required in disciplinary proceedings from the criminal standard of proof beyond reasonable doubt to the civil standard of proof on the balance of probabilities. It is important to note that these amendments do not apply to charges made as a result of an investigation under the Complaints (Australian Federal Police) Act 1981. The amendment reflects current drafting practice and ensures that the AFP's internal disciplinary scheme is consistent with the standard of proof required in most other Australian police forces.
The regulations apply to the Commonwealth of Australia and its territories and to the Australian Federal Police and its officers. The amendment does not extend or restrict application through subordinate instruments. However, any decision by the Commissioner imposing a higher penalty may be reviewable under the Administrative Decisions (Judicial Review) Act 1977 or under the appeals procedure in the Complaints Act as being a penalty unauthorised by law or constituting an error of law.
Key Provisions
The Australian Federal Police (Discipline) Regulations (Amendment) 1993 No. 306 primarily amends Regulation 19, which concerns the institution of disciplinary proceedings by the Commissioner of the Australian Federal Police, and Regulation 21(2), which concerns the standard of proof applied in disciplinary proceedings before the Federal Police Disciplinary Tribunal. The amendments to Regulation 19 introduce new subregulations 19(4A) and (4B) which require the Commissioner to express a view on the appropriate penalty or range of penalties when disciplinary proceedings are initiated, while ensuring that the functions of the Tribunal and Federal Court of Australia are not affected by this view. Regulation 21(2) is amended to replace the criminal standard of proof beyond reasonable doubt with the civil standard of proof on the balance of probabilities.
These amendments impose several obligations on the Commissioner and the Australian Federal Police. Firstly, the Commissioner must express a view on the appropriate penalty or penalties when disciplinary proceedings are instituted, providing a clear indication of the expected consequences for the conduct in question. Additionally, the amendment to Regulation 21(2) mandates that disciplinary proceedings adhere to the civil standard of proof on the balance of probabilities, ensuring that the disciplinary process is consistent with practices in other Australian police forces. It is important to note that these changes do not apply to charges arising from investigations under the Complaints (Australian Federal Police) Act 1981.
Failure to comply with the requirements of the amended regulations may result in legal consequences for the Australian Federal Police. A capricious or unreasonable decision by the Commissioner imposing a higher penalty could be subject to review under the Administrative Decisions (Judicial Review) Act 1977 or the appeals procedure in the Complaints Act. Such a decision could be considered a penalty unauthorised by law or an error of law, leading to potential legal challenges and remedies. However, the amendment does not introduce new offences or penalties but instead refines existing disciplinary processes to ensure they are fair, reasonable, and consistent with broader legal standards.