Australian Federal Police Regulations (Amendment)

EXPLANATORY STATEMENT

STATUTORY RULES 1989 No. 361

Issued By the Authority of the Minister for Justice

Australian Federal Police Act 1979

Australian Federal Police Regulations (Amendment)

The purpose of these amendments to the Australian Federal Police Regulations is:

• to modify the Australian Federal Police Regulations (“the Principal Regulations”) in anticipation of the enactment of the Australian Federal Police (No. 2) Act 1989 (“the AFP (No. 2) Act”). The AFP (No. 2) Act incorporates the Government’s decision to restructure the Australian Federal Police. One of the central elements of the restructuring is the creation of a unified workforce. Australian Public Service officers working in the Australian Federal Police will cease to be employed under the Public Service Act 1922 and will have their terms and conditions of employment determined under the Australian Federal Police Act 1979 and the Principal Regulations.

Notes on individual clauses are set out below:

Regulation 1 defines the “Principal Regulations” to mean the Australian Federal Police Regulations.

Regulation 2 inserts regulation 4A into the Principal Regulations to prescribe the ranks of Commander and Assistant Commissioner for the purposes of section 25A of the Act, which makes provision for senior executive commissioned police officers.

Regulation 3 amends the heading to Division 2 of Part II of the Principal Regulations by omitting “within ranks”; the heading deals with competency and qualifications for positions in the AFP. The amendment will make the heading more consistent with the concept of the unified workforce.

Regulation 4 amends regulation 5 (‘competence and qualifications to hold position’) of the Principal Regulations by inserting a new sub-regulation dealing with the competency and qualifications for staff members for the purpose of new section 26B of the Act. That section makes provisions in relation to the appointment and promotion of staff members by the Commissioner.

Regulation 5 inserts new regulation 7 (‘term of appointments’) which prescribes the maximum terms of appointment for members and staff members for the purposes of section 26D (1) of the Act. That section deals with terms of appointment for members and staff members.

Regulation 6 inserts new regulation 13A which requires a new staff member to make an oath or affirmation of secrecy in accordance with the prescribed form.

Regulation 7 amends regulation 14 (‘appointment on probation’) of the Principal Regulations by amending that regulation for application to both members and staff members. Specifically, it provides for a six month probation for staff members compared to a twelve month period for members who are required to undertake substantial training before commencing duties.

Regulation 8 amends regulation 14K (‘parties to an appeal’) of the Principal Regulations by inserting paragraph (d) which refers to appeals against selection for a direction to a staff member to act in a higher position.

Regulation 9 extends the effect of regulation 14P (‘rights of parties to an appeal’) of the Principal Regulations to staff members as well as members and clarifies that only the Commissioner can be represented by another person at Appeal Committee proceedings.

Regulation 10 inserts new headings to Part III and Division 1 of Part III of the Principal Regulations.

Regulation 11 inserts into regulation 15 (‘notification and application in relation to vacant position’) of the Principal Regulations a definition of “position” in relation to members and staff members for the purposes of that regulation.

Regulation 12 amends regulation 15B of the Principal Regulations, which deals with Joint Selection Committees, to apply that regulation to staff members as well as members. In particular, the provision provides for relevant staff association representation on those committees.

Regulation 13 inserts new Division 1A into Part III of the Principal Regulations. This Division is concerned with the transfer of staff members (regulation 16) and with applications by staff members to decline transfers (regulation 17). The Act makes specific provision for the transfer of members. Regulation 13 also inserts new Division 1B into Part III. This Division essentially adapts, with necessary modifications, existing Public Service regulations which relate to staff members performing temporary duties:

- new regulation 18 defines a number of terms for the purposes of the Division;

- new regulation 18A authorises the Commissioner to direct staff members to perform all or some of the duties of a position until a specific date or event. The Commissioner is to have regard to efficiency of staff members (as defined in sub-regulation 18A(1)) as well as a range of other factors which take account of the performance of the work of the AFP. The regulation provides that the Commissioner’s direction may be revoked or waived at any time;

- new regulation 18B provides that where a staff member is directed to act in a higher position (other than a non appellable level position) the terms of that direction must be notified in the Police Gazette;

- new regulation 18C provides for appeals against the selection of staff members for directions to perform the duties of a higher position (at a non-appellable level) for a continuous period exceeding three months. The regulation provides that the only ground of appeal is that the appellant is the most suitable staff member on the basis of the matters set out in sub-regulation 18A(6) and specifies the appeal procedures;

- new regulation 18D provides that appeals will lapse in the specified circumstances; and

- new regulation 18E provides the Commissioner with an unfettered discretion, where an Appeal Committee has recommended that an appeal be allowed, to revoke the original direction and direct the successful appellant to perform the duties of the position.

Regulation 14 amends regulation 21 (‘day of effect of promotion’) of the Principal Regulations to make provision for the date of effect of promotions or transfers of staff members as well as for members. The difference in periods in which a promotion or transfer takes effect relates to whether a particular promotion would be appealable.

Regulations 15 and 16 repeal regulation 25A (which comprised interpretation provisions for the purposes of Part 3, Division 2A which deals with appeals against promotion) and insert regulations 25A and 25C of the Principal Regulations. These identify positions within ranks and levels of staff members, promotion to which is appealable.

Regulation 17 repeals regulation 40B of the Principal Regulations and inserts a new provision which precludes, in some circumstances, the appointment of a person as a member or a staff member where that person has been retired under the Act on the ground of mental incapacity of a chronic or recurring nature.

Regulation 18 inserts a new regulation 49 in the Principal Regulations. This provision establishes a system for the attachment of the salary of members and staff members for the benefit of judgment creditors. The provision is based, with necessary modifications, on the existing Public Service Act system.

Regulation 19 amends schedule 4 of the Principal Regulations by inserting prescribed forms for the oath or affirmation of secrecy by staff members.

Regulation 20 provides that the Principal Regulations are to be amended in accordance with the minor amendments set out in Schedule 2 to these Regulations. These amendments all extend the operation of particular provisions to staff members as well as members.

Regulation 21 is a transitional provision which will preserve, in accordance with section 55 of the AFP (No 2) Act, the Principal Regulations as in force immediately before these Regulations come into effect. The effect of this regulation

and section 55, which is a transitional provision having effect in relation to the Act, will be to preserve the operation of the current Australian Federal Police administration for most existing members until those members come under the new system established by the AFP (No 2) Act.