EXPLANATORY STATEMENT
STATUTORY RULES 1989 No. 332
ISSUED BY THE AUTHORITY OF THE MINISTER FOR JUSTICE AUSTRALIAN FEDERAL POLICE (DISCIPLINE) REGULATIONS (AMENDMENT)
The purpose of these amendments to the Australian Federal Police (Discipline) Regulations is:
(a) to create new disciplinary offences constituted by the ‘improper use’ by a member of the Australian Federal Police of the fact that he or she is a member, during the commission of a particular disciplinary offence prescribed under the Australian Federal Police (Discipline) Regulations;
(b) to define ‘improper use’ to mean, ‘for the purpose of gaining an advantage for that member of the AFP personally or for another person’;
(c) to provide for the commission of a disciplinary offence where a criminal charge is proven whether or not the court proceeds to convict; and
(d) to clarify the Commissioner’s power to reduce a member’s rank and or salary by way of penalty for a disciplinary offence as provided for under Regulation 22.
Related Statutory Rules will declare these new disciplinary offences to be ‘relevant disciplinary offences’ for the purposes of section 41 of the Australian Federal Police Act 1979.
Notes on individual clauses are set out below:
Regulation 1 defines ‘Principal Regulations’ to mean the Australian Federal Police (Discipline) Regulations.
Regulation 2 amends Regulation 2 of the Principal Regulations, which prescribes disciplinary offences for the purposes of the Principal Regulations, by:
(i) Regulation 2(a) - omitting the word ‘and’ from paragraph 2(a) because of the addition of additional paragraphs 2(c) and 2(d);(ii)
Regulation 2(b) -
(a) inserting new paragraph 2(2)(c) which creates the new disciplinary offence of a member of the AFP improperly using the fact that he or she is a member during the commission of particular disciplinary offences which are identified in proposed Regulation 2(3) of the Principal Regulations; and
(b) inserting new paragraph 2(2)(d) which lists those existing disciplinary offences under Regulation 18 of the Principal Regulations, which are to comprise a new and additional disciplinary offence in circumstances where a member of the AFP improperly uses the fact that he or she is a member during their commission;
(iii) Regulation 2(c) -
(a) which adds new subregulation 2(3) defining a ‘particular disciplinary offence’ for the purposes of proposed paragraph 2(2)(c). The combined effect of proposed paragraph 2(2)(d) and proposed subregulation 2(3) will be to ensure that those disciplinary offences declared to be ‘relevant disciplinary offences’ by the related Statutory Rules, will be confined to the more serious disciplinary offences where it is considered serious misconduct, as defined in subregulation 2(4), could occur; and
(b) inserting subregulation 2(4) which defines the term ‘improper use’ contained in proposed paragraph 2(2)(c) and 2(2)(d), to mean the use of the fact that a person is a member of the Australian Federal Police for the purpose of gaining an advantage for that member personally or for another person.
Regulation 3 amends Regulation 18 of the Principal Regulations by substituting a new paragraph 18(1)(h) thereby providing that a member is guilty of a disciplinary offence and is subject to a disciplinary penalty for that offence under Regulation 22, where the member is charged before a court and the charge is proven to the court’s satisfaction whether or not the court proceeds to convict.
Regulation 4 amends Regulation 22 of the Principal Regulations to clarify the Commissioner’s power to reduce a members’ rank and or salary by way of penalty for a disciplinary offence as provided for under Regulation 22:
(i) Regulation 4(a) amends subparagraph 22(1)(e)(i) to clarify the Commissioner’s power to reduce a member to a lower rank and to reflect the phraseology used in subparagraph 22(1)(d)(i);
(ii) Regulation 4(b) omits subregulation 22(1A) because of the abolition of the concept of a grade within a rank;
(iii) Regulation 4(c) is a consequential amendment which provides that if a member is reduced in rank the salary payable to the member will be a salary as determined by the Commissioner within the appropriate scale of salary rates for that rank; and
(iv) Regulation 4(d) amends subregulation 22(2) with the effect of prohibiting the Commissioner from reducing the annual salary of a member in circumstances where he or she is found guilty of a disciplinary offence under subparagraph 18(1)(h). The amendment also clarifies that this prohibition relates only to the reduction of salary within rank. In other words, the result of the amendment does not prohibit the Commissioner from reducing the member to a lower rank, and in such circumstances the member’s annual salary being reduced pursuant to subregulation 22(1B).