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).
Overview
The Australian Federal Police (Discipline) Regulations (Amendment) Statutory Rules 1989 No. 332, issued by the authority of the Minister for Justice, were enacted to address gaps and issues within the disciplinary framework governing the Australian Federal Police (AFP). These amendments sought to introduce new disciplinary offences related to the improper use by AFP members of their status during the commission of other disciplinary offences, as well as to define 'improper use' for the purposes of these offences. Additionally, the regulations aim to provide for the commission of a disciplinary offence when a criminal charge is proven, irrespective of the court's decision to convict. Another objective is to clarify the Commissioner's power to impose penalties, such as rank and salary reductions, for disciplinary offences. The Parliament of Australia enacted these regulations to enhance the oversight and accountability mechanisms within the AFP, ensuring that misconduct is appropriately addressed and deterred.
These amendments aim to strengthen the disciplinary regime by introducing measures that specifically target the misuse of AFP status for personal or others' advantage. By clearly defining what constitutes improper use and establishing disciplinary consequences for such actions, the regulations seek to uphold the integrity and professionalism expected from AFP members. The amendments also provide for disciplinary action even in cases where a criminal charge is proven, ensuring that the AFP can take appropriate measures irrespective of the court's final decision. Furthermore, by clarifying the penalties available to the Commissioner, including the ability to reduce rank and salary, the regulations reinforce the seriousness with which disciplinary matters are treated within the AFP.
Scope and Application
The Australian Federal Police (Discipline) Regulations (Amendment) Statutory Rules are aimed at modifying existing disciplinary offences within the Australian Federal Police (AFP) by introducing new offences related to the improper use of membership status by AFP officers. The amendments are intended to address instances where a member leverages their AFP membership to gain personal or third-party advantages, thereby constituting misconduct. This addition to the existing disciplinary framework ensures that officers face disciplinary action not only for their actions but also for exploiting their position. The amendment explicitly defines 'improper use' as any use of AFP membership for personal gain or the gain of another person. Furthermore, the regulations extend the scope of disciplinary offences to include instances where a criminal charge is proven, irrespective of the court's decision to convict. The regulations also clarify the Commissioner's authority to impose penalties, including rank and salary reductions, for disciplinary offences. These amendments apply to all members of the Australian Federal Police, encompassing their conduct and transactions, and extend to the entire Commonwealth of Australia.
The regulations also contain specific exclusions and clarifications regarding the penalties that can be imposed. For instance, while the Commissioner retains the authority to reduce a member's rank as a disciplinary penalty, they are prohibited from reducing a member's salary within the same rank if the member is found guilty of a disciplinary offence related to improper use of membership status. This nuanced approach ensures that disciplinary measures are applied fairly and proportionately. The regulations are part of a broader legislative framework that includes related Statutory Rules, which designate these new disciplinary offences as 'relevant disciplinary offences' under the Australian Federal Police Act 1979. This comprehensive approach ensures that the amendments are effectively integrated into the existing legal structure, providing clarity and consistency in enforcement.
Key Provisions
The Australian Federal Police (Discipline) Regulations (Amendment) Statutory Rules 1989 No. 332 introduce significant changes to the disciplinary framework for members of the Australian Federal Police (AFP). These amendments primarily focus on creating new disciplinary offences, defining the term 'improper use', and clarifying the Commissioner's disciplinary powers. Regulation 2(b)(a) introduces a new disciplinary offence under Regulation 2(2)(c) of the Principal Regulations, where a member improperly uses the fact that they are a member during the commission of particular disciplinary offences. Regulation 2(b)(b) further elaborates on this by listing existing disciplinary offences under Regulation 18 that become additional offences when improperly used. Regulation 2(c) defines 'particular disciplinary offence' and 'improper use', ensuring that the new offences are limited to serious misconduct as outlined in subregulation 2(4).
The obligations imposed by these amendments require AFP members to adhere strictly to the newly defined disciplinary offences. Members must ensure that they do not improperly use their status for personal or third-party advantage during the commission of any disciplinary offence. Regulation 3 stipulates that being charged and having the charge proven before a court constitutes a disciplinary offence, irrespective of the court's decision on conviction. Regulation 4 clarifies and restricts the Commissioner's powers concerning rank and salary reductions. Specifically, it ensures that while a member can be demoted to a lower rank as a penalty, their annual salary within the same rank cannot be reduced as a disciplinary measure.
Breaching these regulations can lead to significant consequences. Under Regulation 2, improperly using one's status as an AFP member can result in disciplinary penalties. Regulation 3 imposes penalties for offences proven in court, which can include demotion or other disciplinary actions as outlined in Regulation 22. Regulation 4 ensures that salary reductions are not permissible within the same rank, although demotion to a lower rank with a corresponding salary adjustment remains an option. The exact penalties for these offences are not specified in the Explanatory Statement but are detailed in the related Statutory Rules, which will declare these offences as 'relevant disciplinary offences' under section 41 of the Australian Federal Police Act 1979.