EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 363
ISSUED BY THE AUTHORITY OF THE MINISTER FOR JUSTICE
AUSTRALIAN FEDERAL POLICE REGULATIONS
The primary purpose of these amendments to the Australian Federal Police Regulations (AFP Regulations) is to facilitate the implementation of a Career Structure Review of the Australian Federal Police.
The amendments to the AFP Regulations are designed to effect the most fundamental changes to the structure and administration of the Australian Federal Police since the creation of the Australian Federal Police in 1979. The changes also reflect the fact that the functions of the Australian Federal Police are primarily of a criminal investigation and law enforcement nature with respect to Commonwealth laws (apart from its community policing role in the A.C.T.).
This emergence of the Australian Federal Police as an investigatory agency has increased with the recent divestment of functions relating to diplomatic security, coastal protection and the guarding of certain Federal Judges.
The amendments will streamline the structure and administration of the Australian Federal Police and enhance its efficiency through a series of related measures which include:
(a) broadbanding the rank structure to reduce the number of ranks from 9 to 5;
(b) removing barriers to promotion on merit and accelerated advancement by removing certain eligibility prerequisites for promotion;
(c) ending the role of seniority in relation to promotions at any rank level;
(d) allowing lateral entry to ranks above constable in certain circumstances;
(e) streamlining the procedures relating to promotion and promotion appeals;
(f) providing for the appointment of non-citizens on probation; and
(g) allowing persons who are appointed as constables, sergeants and Superintendents to be paid at greater than base salary level.
The proposed restructuring will have the following effects:
(i) Reduction in the Australian Federal Police’s unnecessary layers of management, improving the speed and flow of information and decisions throughout the organisation, resulting in an environment which creates more rewarding jobs for members of the Australian Federal Police and a greater ability for the organisation to combat crime.
(ii) Improved capacity to deploy staff to meet operational needs because of greater flexibility and mobility.
(iii) Greater opportunities for re-arrangement of duties to provide relief for short absences.
(iv) Reduced cost of higher duties payments due to the broadbanding of ranks.
(v) Reduced administrative costs for promotions due to the reduced number of promotions in the broadbanded structure and the streamlining of the promotion and promotion appeals procedures.
(vi) The increased ability to attract, retain and reward specialist members through lateral entry, improved job opportunities and incremental pay levels.
(vii) Improved efficiency as a result of an entirely merit based promotion system which will allow accelerated advancement.
Notes on Clauses
Regulation 1: Commencement
This regulation provides for these regulations to commence on 1 January 1989.
Regulation 2: Principal Regulations
This regulation defines ‘Principal Regulations’ to mean the Australian Federal Police Regulations.
Regulation 3: Non-Commissioned ranks
Regulation 4: Commissioned ranks
These regulations amend rr.3 and 4 of the Principal Regulations for the purpose of broadbanding and thereby reducing the number of ranks in the AFP from 9 to 5. Regulation 3 prescribes the ranks of constable and sergeant as non-commissioned ranks and r.4 prescribes the ranks of Superintendent, Commander and Assistant Commissioner as commissioned ranks for the purposes of s.23 of the Act.
Regulation 5: Competence and qualifications to hold position
This regulation repeals r.5 of the Principal Regulations and inserts a new r.5 which updates the criteria of competence and qualification to hold a position within the AFP. The criteria relate to such things as citizenship, age, physical and mental health, character and the experience, qualifications, training, and any other factors necessary to the effective performance of the position. The amendment also removes the existing criteria that a person must hold the rank of Senior Sergeant or Station Sergeant as a prerequisite to promotion to the rank of Inspector and that a person must be a commissioned officer as a prerequisite to promotion above the rank of Inspector. By removing rank as a prerequisite to promotion in this way, the amendment facilitates accelerated advancement and selection on merit
Regulations 6 and 7: Training Courses
These regulations repeal rr.6, 7, 8 and 9 of the Principal Regulations and insert a new, administratively more flexible provision dealing with training courses. New r.6 enables the Commissioner to establish and arrange for the conduct of appropriate training courses for members. As a significant benefit to members this provision allows for accelerated promotional advancement by removing training courses as a prerequisite to promotion.
Regulation 8: Duty statements and selection criteria
This regulation amends r.10 of the Principal Regulations to substitute a new para. 10(b) which specifies the matters to be included in the selection criteria as being required for the effective performance of the duties of a position in the AFP. The amendment brings r.10 into line with subs. 36(2) of the Act dealing with promotions.
Regulation 9: Appointment on probation
This regulation amends r.14 of Principal Regulations as a consequence of new r.14A to make clear that r.14 only applies to the appointment on probation of a person who is an Australian citizen.
Regulation 10 inserts two new provisions dealing with the appointment of a person on probation to the AFP into Part II of the Principal Regulations.
Proposed new Regulation 14A: Appointment of non-citizen on probation
This new regulation provides for the appointment of a non-citizen on probation to the AFP. The probation requirements are substantially the same as those applying in relation to the appointment on probation of Australian citizens differing, however, in two respects. The period of the probation is 2 years as this takes into account the possibility that in a particular case compliance with citizenship residency requirements may take up to 2 years from the time of appointment. Also, the Commissioner is required to annul the appointment if the Commissioner believes on reasonable grounds that the person has been refused Australian citizenship, is unlikely to be granted citizenship within a reasonable time, or is not seeking the grant of citizenship.
Proposed new Regulation 14B: Appointment of certain members on probation
This new regulation applies where a person is appointed on probation within the rank of constable or, being a non-member, is appointed on probation in accordance with new r.15C. Under this new regulation, the applicable rate of salary on appointment must be appropriate for the person having regard to the experience, qualifications, training and any other factors relevant to the discharge of the duties of the position. The effect of this provision is that, having regard to these matters, the applicable salary on appointment may be at any of the increment levels with the relevant rank.
Regulations 11, 12, 13, 14 and 15: Proceedings before a Review Committee
These regulations amend Division 2 of Part IIA of the Principal Regulations to make minor drafting amendments to paras 14K(c) and 14L(a) and subrr.14P(2) and subr.14Q(1) as a consequence of the streamlining of promotion procedures effected by these regulations. Regulation 13 amends subr.14(2) to make a minor drafting amendment as a consequence of the repeal of subr.(1) by Statutory Rules No. 83 of 1988.
Regulation 15 repeals r.15 of the Principal Regulations and inserts 4 new provisions dealing with the procedures and requirements for the selection of persons to positions within the AFP.
Proposed new regulation 15: Notification and application in relation to vacant position
This new regulation applies where a position within any rank, other than constable, becomes vacant and requires the Commissioner, subject to specified exceptions, to publish a notice in the Police Gazette inviting applications for promotion from members who satisfy the requirements of new paras 5(1)(e) and (f).
Proposed new regulation 15A: Selection committees
This new regulation establishes procedures for the selection of members to vacant positions within the AFP. These procedures ensure fairness and equity to applicants, enhance administrative efficiency, and generally speaking, reflect Australian Public Service procedures on the same matter. These procedures also substantially apply to the selection procedures in new r.15B and 15C.
Under subr.(1) the Commissioner may form a selection committee for the purpose of recommending the most efficient applicant suitable for promotion to the position. Subr.(3) is an equal opportunity provision and requires female membership of the selection committee where a female member is an applicant for a position. Subr.(4) to (8) provide for the short-listing of applicants for interview, the obtaining of referees’ comments on applicants and the use of telephone interviews where the applicant is not reasonably available for personal interview.
Proposed new Regulation 15B: Joint Selection Committee
This new regulation provides an alternative selection procedure to that in new r.15A. The procedures of the selection committees to be formed or established under new r.15A and 15B respectively are substantially the same, however, the joint selection committee under r.15B is designed to be used in circumstances where the Commissioner intends to fill concurrently a number of vacancies to positions within the same rank by utilizing a single selection process. The
consent of the Australian Federal Police Association (the Association) is required for the establishment of a joint selection committee and the committee shall comprise a convenor nominated by the Merit Protection and Review Agency, and members nominated by both the Commissioner and the Association. The promotion of a member on the recommendation of a joint selection committee is not appealable under new r.26.
Proposed new Regulation 15C: Application by non-member
This new regulation enables the Commissioner to appoint non-members to a position within the AFP, the effect of which is to allow lateral recruitment to positions above the rank of constable in the limited circumstances set out in this regulation. This regulation applies where the relevant position has been advertised under new subr.15(1) and either no applications have been received or, in the opinion of the Commissioner, no applicant is competent and qualified to hold the position. Under subrr.(4) (5) and (6) the Commissioner may advertise the position in newspapers, engage consultants and establish a selection committee for the purpose of recommending an applicant suitable for appointment to the position. Selection is open to both members and non-members.
Regulation 17: Repeal of regulations 16 and 17
This regulation repeals rr.16 and 17 of the Principal Regulations as a consequence of the streamlining of promotion procedures brought about by these regulations.
Regulation 18: Division not to apply in certain cases
This regulation amends r.18 of the Principal Regulations by omitting para (a) dealing with officers of the Australian Public Service to whom s.26A of the Act applies. This paragraph no longer has any operation as s.26A of the Act is substantially a transitional provision relating to the appointment of former narcotics officers after the establishment of the AFP.
Regulation 19 amends the Principal Regulations by inserting a new Division 2 into Part III which provides for procedures relating to promotion.
Proposed new Regulation 19: Interpretation
This new regulation is definitional.
Proposed new Regulation 20: Notification in Police Gazette
This new regulation requires the Commissioner to notify the promotion of a member under ss.25 or 26 of the Act in the Police Gazette and sets out those matters to be included in that notification.
Proposed new Regulation 21: Day of effect of promotion
This new regulation provides that a promotion shall take effect as provided by this regulation or on such later day, if any, as is specified in the notification under new r.20. The purpose of this postponed day of effect is to provide for such situations as interstate and overseas postings where, for administrative and promotees’ personal reasons, an extended period of notice may be required before the promotee takes up duty in the position.
Proposed new Regulation 22: Cancellation of promotion
This new regulation enables a member selected for promotion to request the Commissioner to cancel the promotion before the promotion takes effect and the cancellation shall be notified accordingly in the Police Gazette.
Proposed new Regulation 23: Concurrent promotion
This new regulation makes provision for the situation where a member is selected for concurrent promotions, being 2 or more promotions notified in the Police Gazette under r.20 within a defined period. Subregulation (2) provides a mechanism where by the promotee may elect to accept one or none of these promotions and the Commissioner shall give effect to that election accordingly. This procedure ensures fairness to the promotee and promotes administrative efficiency.
Subregulation (3) covers the situation where the promotee omits to make a valid election and makes provision for which of the concurrent promotions should take effect. Under subr.(4) those concurrent promotions which do not take effect shall be taken to be cancelled as if the promotee had applied for cancellation under new subr.22(1).
Proposed new Regulation 24: Procedure where promotion not taken up
This new regulation promotes administrative efficiency and sound personnel management practice in circumstances where the promotee does not take up the relevant position and enables the Commissioner to select the next best of the applicants for promotion to the position.
Proposed new Regulation 24A: Entitlement to payment of salary on promotion
This new regulation is inserted as a consequence of the revised promotion and appeals procedures effected by these regulations and specifies the day on which a promotee is entitled to salary at the rate applicable to the relevant position.
Regulation 20: Prescribed ranks for the purposes of paragraph 40(1)(c) of the Act
This regulation repeals r.25B of the Principal Regulations as a consequence of the restructuring and broadbanding of ranks
brought about by the amendment of r.3 of the Principal Regulations. The effect of this regulation is to make promotions to the rank of sergeant appellable.
Regulation 21: Repeal of regulation 25C
This regulation repeals r.25C of the Principal Regulations as part of the streamlining of promotion procedures. Paragraph 22(c) of these Regulations inserts a corresponding provision on this matter.
Regulation 22: Appeal against promotion
This regulation repeals r.26 of the Principal Regulations and substitutes a new regulation dealing with procedures for appeal against promotion. Under this provision a member who considers he or she has a better claim to promotion to the position than the member whose promotion has been notified under new r.20, may, within the specified period, lodge an appeal with the Review Committee. Such a notice of appeal cancels the day of effect of the relevant promotion.
Regulation 23: Notification of appeal
Regulation 24: Power of Review Committee
Regulation 25: Determination of appeal
These regulations amend rr.27, 31 and 32 respectively of the Principal Regulations to make minor drafting amendments as a consequence of the repeal of rr.16 and 17. Further to this, r.22 inserts a new para 27(c) into the Principal Regulations as a result of the repeal of r.25C. In the event of an appeal against promotion, this new provision enables the Review Committee to request the promotee to submit a written statement in support of the promotion. Also, as part of the streamlining of appeals procedures, r.24 amends r.32 of the Principal Regulations to enable the Commissioner to confirm or cancel a promotion, as appropriate, on the recommendation of the Review Committee.
Regulation 26: Repeal of regulation 33
This regulation repeals r.33 of the Principal Regulations and a new provision in similar terms is inserted into new subr.20(1), as this provision is considered to be more pertinent to those matters contained in Division 2 of Part III.
Regulation 27: Prescribed organisation for the purposes of subsection 34(1) of the Act
This regulation inserts a new r.39AA into the Principal Regulations to prescribe the United Nations for the purpose of enabling the Commissioner to grant special leave of absence to a member to engage in the service of the United Nations.
Regulation 28: Ranks to which section 64A of the Act applies
This regulation amends r.40 of the Principal Regulations to declare the ranks of constable and sergeant as ranks within which members must wear identification numbers on the front of their uniforms. This amendment arises as a consequence of the broadbanding of ranks effected by new r.3.
Regulation 29: Repeal of regulation 42A
This amendment repeals r.42A of the Principal Regulations to remove any prospect that the criterion of ‘seniority’ could be used as a prerequisite for selection for promotion, thus reinforcing the merit principle as the basis of selection for promotion. The Australian Federal Police (Discipline) Regulations will be amended concurrently to insert a revised provision relating to seniority.
Regulation 30: Transfer of unclaimed property
This regulation amends r.45 of the Principal Regulations in substance to substitute a new para.(3)(b) which specifies ‘keys’ as a class of unclaimed items which may be disposed of by the Commissioner other than by public auction. The amendment arises from a concern that the keys may be used to perpetrate an offence or offences.
Regulation 31: Transitional
This regulation is a transitional provision necessitated by the restructuring and broadbanding of ranks brought about by the amendments to rr.3 and 4 and equates former ranks with current ranks under the Principal Regulations.