Merit Protection (Australian Federal Police) Regulations (Amendment) 1992 No. 301
EXPLANATORY STATEMENT
STATUTORY RULES 1992 No. 301
Issued by the Authority of the Prime Minister
Merit Protection (Australian Government Employees) Act 1984
Merit Protection (Australian Federal Police) Regulations (Amendment)
The purpose of the amendment is to amend the Schedule to the Merit Protection (Australian Federal Police) Regulations (the Regulations). The Regulations provide that the Merit Protection (Australian Government Employees) Act 1984 (the Act) applies to and in relation to members and staff members of the AFP subject to the modifications set out in the Schedule to the Regulations. The amendments to the Schedule bring the modifications to the Act into line with recent amendments to the Australian Federal Police Act 1979 and with recent and concurrent amendments to the Australian Federal Police Regulations.
The details of the proposed Amendment are as follows:
Regulation 1 provides that the Regulations are amended.
Regulation 2 amends the modifications to the Act set out in the Schedule to the Regulations as follows:
• Subregulations 2.1, 2.2, 2.7, 2.8 and 2.10 omit references to redeployment from provisions relating to redeployment and retirement appeals in the existing modification of subsection 3(1) and substituted section 4 of the Act (as set out in the Schedule to the Regulations) and in the previously unmodified sections 22 and 23, subsection 25(1) and section 26 of the Act. This reflects the fact that the rights in relation to redeployment which formerly existed under sections 38A and 38C to 38F of the Australian Federal Police Act 1979 (the AFP Act) were abolished as part of the changes made to employment in the AFP by the Australian Federal Police Legislation Amendment Act (No. 2) 1989.
• Subregulations 2.3, 2.4, 2.11 and 2.12 replace the existing substituted paragraphs 4(c) and 6(b), section 38 and paragraph (a) of the definition of "relevant decision" in subsection 57(2) of the Act (as set out in the Schedule to the Regulations). The new substituted provisions extend existing provisions for review of, and giving of advice on members' and staff members' rights in relation to, non-appellable promotions which are directly reviewable under section 36B of the AFP Act to cover promotions which are declared by section 36C of the AFP Act to be reviewable under section 36B. This is an element of a scheme to allow for positions of member and staff member to be advertised as alternatives and for cross-promotions between the member and staff member employment streams following such advertisements. Section 36C of the AFP Act, introduced by the Crimes Legislation Amendment Act 1991, provides for review under section 36B of promotions under this scheme, including cross-stream promotions, to nonappellable positions. Section 36B does not directly provide review rights to an applicant, because of technical legal problems arising from the existence of the distinct member and staff member employment streams.
• Subregulation 2.5 amends substituted paragraph 9(a) of the Act (as set out in the Schedule to the Regulations) by inserting a reference to new regulations 25CA and 25CB of the Australian Federal Police Regulations (the AFP Regulations). These new regulations were inserted by the Australian Federal Police Regulations (Amendment), which were made simultaneously with these Regulations. They form another element of the cross-stream promotion scheme described above, authorising crossstream appeals in relation to appellable vacancies advertised under the scheme if the promotee and appellant initially belonged to different streams. The amendment to substituted paragraph 9(a) provides for the function of Promotion Appeals Committees established under modified section 9 of the Act to include determination of such cross-stream appeals.
• Subregulations 2.6 and 2.9 replace references to Division 2 of Part IIA of the AFP Regulations in substituted sections 11 and 24 of the Act (as set out in the Schedule to the Regulations) with references to Part 2A of the AFP Regulations. This reflects amendments to the AFP Regulations introduced by Statutory Rules 1989 No. 362. In addition, subregulation 2.6 removes a requirement in substituted section 11 that Part 2A be read, for the purpose of the section (viz. determining who is a party to a promotion appeal), as it stood on 1 January 1989. This requirement was designed to avoid confusion about applicable rules during a transitional period and is no longer necessary.
• Subregulation 2.13 amends substituted paragraph (b) of the definition of "relevant decision" in subsection 57(2) of the Act (as set out in the Schedule to the Regulations) by omitting references to section 38C and to subsections 38D(1) and 38E(1) of the AFP Act. The provisions of the AFP Act referred to, which provided for decisions to be made by the Commissioner of the AFP, were repealed by the Australian Federal Police Legislation Amendment Act 1989. The identically numbered provisions which replaced them did not authorise the Commissioner to make decisions.
• Subregulation 2.14 amends substituted paragraph (c) of the definition of "relevant decision" in subsection 57(2) of the Act (as set out in the Schedule to the Regulations) by adding a reference to Division 2A of Part 3 of the AFP Regulations. Division 2A includes provision for decisions to be made in relation to promotion appeals.
Overview
The Merit Protection (Australian Federal Police) Regulations (Amendment) 1992 No. 301 were introduced to amend the Merit Protection (Australian Federal Police) Regulations, which in turn modify the application of the Merit Protection (Australian Government Employees) Act 1984 to members and staff members of the Australian Federal Police (AFP). The amendments were made to align the Regulations with recent changes to the Australian Federal Police Act 1979 and the Australian Federal Police Regulations, ensuring consistency across relevant legislation. The objective of these amendments was to update the regulatory framework to reflect the current legal environment and operational practices of the AFP, particularly in relation to employment rights, promotions, and appeals. These changes were authorised by the Prime Minister under the authority of the Australian Government and were designed to streamline and modernise the regulatory approach to merit protection within the AFP.
The Merit Protection (Australian Federal Police) Regulations (Amendment) 1992 No. 301 specifically addressed several modifications to the Merit Protection (Australian Government Employees) Act 1984, including the removal of outdated references to redeployment rights that were abolished by the Australian Federal Police Legislation Amendment Act (No. 2) 1989, and updates to provisions concerning review rights and cross-stream promotions within the AFP. These amendments were enacted by the Australian Parliament to ensure that the regulatory framework remains effective and relevant in supporting the professional integrity and operational efficiency of the Australian Federal Police.
Scope and Application
The Merit Protection (Australian Federal Police) Regulations (Amendment) 1992 No. 301 pertains to the modifications of the Merit Protection (Australian Government Employees) Act 1984, specifically applying to members and staff members of the Australian Federal Police (AFP). The Act, as amended by these Regulations, seeks to align the modifications to the Act with recent amendments to the Australian Federal Police Act 1979 and concurrent amendments to the Australian Federal Police Regulations. These amendments primarily involve updating the Schedule to the Regulations to reflect changes in the AFP Act, including the abolition of certain redeployment rights and the introduction of a cross-promotion scheme. The geographic and jurisdictional reach of these Regulations is limited to the Commonwealth level, governing conduct and transactions specifically involving the AFP. There are no stated exclusions or exemptions within the text of these Regulations, although the applicability of the amended provisions is inherently restricted to the AFP. The application of the Act may be further extended or restricted through subordinate instruments, such as the newly referenced regulations 25CA and 25CB of the Australian Federal Police Regulations.
Key Provisions
The Merit Protection (Australian Federal Police) Regulations (Amendment) 1992 No. 301, issued under the authority of the Prime Minister, amends the Merit Protection (Australian Government Employees) Act 1984. This amendment focuses on updating the Schedule to the Merit Protection (Australian Federal Police) Regulations to align with recent changes in the Australian Federal Police Act 1979 and the Australian Federal Police Regulations. Regulation 2 in particular makes several modifications to the Act as set out in the Schedule to the Regulations. For instance, subregulations 2.1, 2.2, 2.7, 2.8, and 2.10 remove references to redeployment, reflecting the abolition of such rights under the Australian Federal Police Legislation Amendment Act (No. 2) 1989. Subregulations 2.3, 2.4, 2.11, and 2.12 extend existing provisions for review of non-appellable promotions to cover promotions deemed reviewable under section 36B of the Australian Federal Police Act. This change is intended to facilitate cross-promotions between the member and staff member employment streams. Subregulation 2.5 inserts a reference to new regulations 25CA and 25CB of the Australian Federal Police Regulations, enabling cross-stream appeals for appellable vacancies. Subregulations 2.6 and 2.9 update references to reflect amendments in the Australian Federal Police Regulations introduced by Statutory Rules 1989 No. 362. Subregulation 2.13 removes references to repealed provisions in the Australian Federal Police Act that previously authorised decisions to be made by the Commissioner of the AFP. Lastly, subregulation 2.14 updates the definition of "relevant decision" by adding a reference to Division 2A of Part 3 of the Australian Federal Police Regulations.
The Act imposes several obligations on the Australian Federal Police (AFP) and its members and staff members. These obligations include ensuring that the provisions of the amended regulations are followed in the administration of merit protection matters. This involves providing appropriate review mechanisms for promotions and appeals, particularly cross-stream promotions and appeals, as outlined in the amended regulations. The AFP must also ensure that all relevant decisions and appeals are managed in accordance with the updated definitions and provisions, such as those relating to the role of the Promotion Appeals Committees and the procedures for handling cross-stream appeals. Furthermore, the Act requires that the AFP maintains up-to-date records and documentation to reflect the changes in the regulations, ensuring transparency and compliance with the legislative amendments.
Breaches of the provisions set out in the amended regulations may result in various consequences, though the specific offences, penalties, or consequences are not detailed within the explanatory statement. Generally, non-compliance with legislative requirements in Australia can lead to administrative penalties, fines, or other sanctions as prescribed by relevant laws. For instance, under the Merit Protection (Australian Government Employees) Act 1984, failure to adhere to the provisions could potentially result in disciplinary action against AFP members and staff members, including dismissal or other penalties as deemed appropriate by the relevant authorities. Additionally, any individual or entity found to be in breach of the regulations might face legal action, including civil or criminal proceedings, depending on the nature and severity of the breach. The exact penalties would depend on the specific provisions breached and the discretion of the court or tribunal hearing the case.