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AUSTRALIAN FEDERAL POLICE AMENDMENT REGULATIONS 2000 (NO. 2) 2000 NO. 138
EXPLANATORY STATEMENTStatutory Rules 2000 No. 138
Issued by the Authority of the Minister for Justice and Customs
Australian Federal Police Act 1979
Australian Federal Police Amendment Regulations 2000 (No. 2)
The Australian Federal Police Legislation Amendment Act 2000 (the Amendment Act) amends the Australian Federal Police Act 1979 (the Act), providing a framework for the increased use of industrial agreements in the Australian Federal Police (the AFP) and clarifying the Commissioner's command powers as head of a disciplined force.
Section 70 of the Act provides that the Governor-General may make Regulations for, inter alia, securing the discipline and good government of the AFP, or for otherwise carrying out or giving effect to the Act. Section 40J of the Act provides that the Regulations may provide for the suspension from duties of AFP employees, with or without remuneration, and provide that declarations of member status cease to be in force during a specified period.
The Australian Federal Police Regulations (the Principal Regulations) made under the Act set out various matters necessary to give effect to the Act. The purpose of these Regulations is to make necessary or appropriate changes to the Principal Regulations in relation to a range of matters, to include transitional regulations and to remove regulations that are no longer needed as a consequence of the Amendment Act.
These Regulations:
* insert a new provision designed to ensure that employment decisions made under the Act and Principal Regulations are based on values including impartiality and freedom from discrimination;
* insert a new provision dealing with suspension from duties of AFP employees (suspension from duties was previously dealt with under the Australian Federal Police (Discipline) Regulations);
* insert a new provision dealing with the confidentiality and handling of financial statements provided by AFP employees and special members;
* insert a streamlined and updated review process for retirement due to physical or mental incapacity; and
* provide that the Commissioner must ensure that a process for reviewing AFP employment decisions exists at all times.
Details of these Regulations are set out in the Attachment.
These Regulations commence on the same day as the Amendment Act (other than items 34, 47 and 48 of Schedule 2 to that Act) commences. The Amendment Act commences on 2 July 2000.
ATTACHMENT
REGULATIONS 2000 (No. 2~)
Regulation 1
The name of these Regulations is the Australian Federal Police Amendment Regulations 2000.
Regulation 2
Regulation 2 provides that these Regulations commence on the same day as the Amendment Act (other than items 34, 47 and 48 of Schedule 2 to that Act) commences (ie. 2 July 2000).
Regulation 3
Regulation 3 provides that Schedule 1 to these Regulations amends the Principal Regulations.
Regulation 4
Regulation 4 contains definitions for the purposes of regulations 5 and 6. It defines the terms commencing time, former Act, former commissioned police officer, former non-commissioned police officer, former senior executive commissioned police officer, former senior executive officer, former special member, former staff member, former temporary employee and later Act.
Regulation 5
Regulation 5 is a transitional regulation. It provides that former commissioned police officers, former non-commissioned police officers, former special members and former staff members are, where the Commissioner has given notice in writing:
* engaged at the commencement of the Amendment Act for a period equal to the unexpired part of their fixed term appointment; and
* engaged under the same terms and conditions that applied to them immediately prior to the commencement of the Amendment Act.
New regulation 5 also provides that former senior executive commissioned police officers and former executive officers are automatically:
* engaged at the commencement of the Amendment Act for a period equal to the unexpired part of their fixed term. appointment; and
* engaged under the same terms and conditions that applied to them immediately prior to the commencement of the Amendment Act.
Terms and conditions applying to former commissioned police officers, former non-commissioned police officers, former special members, former staff members, former senior executive commissioned police officers and former executive officers, that were modified by provisions of a Certified Agreement before commencement of the Amendment Act, therefore continue to be modified to the same extent.
New regulation 5 does not apply to former temporary employees. Their instruments of appointment, which are continued by operation of item 2(3) of Schedule 3 to the Amendment Act, specify their period of employment.
Regulation 6
Regulation 6 is a transitional regulation. It provides that the Commissioner is taken to have made a declaration under subsections 9(2A) and (2B) of the Act, where the Commissioner had made a declaration under paragraph 9(2)(b) of the former Act. This ensures that declarations of rank for the purposes of State laws, continue to have effect after commencement of the Amendment Act.
Regulation 6 ceases to have operative effect where the Commissioner actually makes a declaration under subsection 9(2A) of the Act.
Schedule 1 - Amendments
Item 1
Item 1 substitutes regulation 1 which names the Principal Regulations as the
Australian Federal Police Regulations 1979.
Item 2
Item 2 inserts new regulation 2, replacing the existing interpretation regulation. New regulation 2 removes references to expressions that are no longer required and inserts new references where necessary.
This regulation defines the terms Act, AFP, AFP records, Merit Protection Commissioner and remuneration, and contains a formula for the expression cost to AFP for use of AFP employee's time.
Item 3
Item 3 repeals Parts 2, 2A, 3 and 3A of the Principal Regulations and inserts Part 2 (dealing with employment) and Part 3 (dealing with review of employment decisions).
New regulation 3 sets out AFP values. The regulation is designed to ensure that employment decisions made under the Act and Principal Regulations are based on values including impartiality and freedom from discrimination.
New regulation 4 sets out the competencies and qualifications necessary for a member of the AFP to be a commissioned police officer. This updates and simplifies the requirements that were set out in regulation 5 of the Principal Regulations.
New regulation 5 deals with the suspension from duties of AFP employees. A suspended AFP employee shall be paid his or her salary during a period of suspension, unless the Commissioner otherwise directs. The regulation also details when the Commissioner must end a suspension.
New regulation 6 deals with the suspension of member status (which enables the exercise of police powers) for a specified period. Suspension can be for, amongst other things, periods of leave (such as maternity or parental leave), during secondment or when the member is performing duties that do not require the exercise of police powers.
New regulation 7 remakes regulation 38 of the Principal Regulations, retaining the prescribed rate of the displacement allowance payable under subsection 20(2) of the Act.
New regulations 8 and 9 refer to the prescribed forms to be used for undertakings, oaths and affirmations, for the purposes of section 36 of the Act.
New regulations 10 and 11 remake regulations 41 and 42 of the Principal Regulations (dealing with the resignation and re-engagement of AFP employees), where the employees have resigned for the purpose of contesting an election.
New regulation 12 deals with the confidentiality and handling of financial statements provided by AFP employees and special members. These statements may be requested by the Commissioner under the Act, for probity and discipline reasons.
New regulation 13 remakes regulation 49 of the Principal Regulations (dealing with the attachment of salary to satisfy judgment debts), and includes a one-offpayment of a fee by the creditor to cover the administration of the scheme.
New regulation 14 remakes regulation 42B of the Principal Regulations (dealing with awards for bravery), with minor consequential amendments to terminology.
New regulation 15 provides for the notice period for employees under subsection 3 1 (1) of the Act.
Part 3 (dealing with the review of employment decisions) contains new regulations 16 to 23. These regulations:
* Provide that an AFP employee who has been retired under the Act because of physical or mental incapacity, without consent, may apply in writing to the Merit Protection Commissioner for review of the decision.
* Provide a structure for review, including: detailing the necessary procedure to be followed by applicants, the Commissioner and the Merit Protection Commissioner to facilitate review; the minimum requirements for the conduct of a review; and the exclusion of information.
Empower the Commissioner to give effect to a recommendation of the Merit Protection Commissioner, by confirming or revoking the decision to retire an AFP employee.
New regulation 24 provides that the Commissioner must ensure that a process for reviewing AFP employment decisions exists at all times. There is currently a provision in the AFP Certified Agreement for a Board of Reference that can review such decisions. Should this provision be negotiated out of the Agreement, this regulation requires that some other review mechanism be established.
Items 4 to 9
Items 4 to 9 renumber the provisions in Part 4 of the Principal Regulations (dealing with listening devices) and make amendments consequent upon renumbering.
Item 10
Item 10 deletes the heading to Part 5 (Miscellaneous) and substitutes a new heading entitled "AFP property matters".
Item 11
Item 11 repeals regulations 3 8, 3 9, 3 9AA, 3 9AB, 3 9A, 40, 40A, 40B, 41, 42 and 42B of the Principal Regulations. Regulations 3 8, 40, 41, 42 and 42B are elsewhere in the Regulations or Act. Regulations 3 9, 3 9AA, 3 9AB, 3 9A and 40B are not required. Generally, they prescribed matters for sections that have been repealed from the Act or they dealt with the abolished rank and level structure.
Items 12
Item 12 renumbers regulation 43 of the Principal Regulations as regulation 28.
Item 13
Item 13 remakes subregulation 43(1) (this is now subregulation 28(1)) in relation to the return of property. In addition, the penalty attaching to subregulation 43(1) is modernised to refer to penalty units as opposed to a dollar amount.
Item 14
Item 14 makes a minor amendment to subregulation 43(3).
Item 15
Item 15 remakes subregulation 43(4), omitting references to member which are no longer required.
Item 16
Item 16 repeals regulation 44 of the Principal Regulations. Delegation is dealt with in new Part 6 of the Regulations.
Item 17
Item 17 repeals regulation 45 of the Principal Regulations (dealing with the transfer of unclaimed property) and replaces it with new regulations.
New regulation 29 enables property that is lawfully held by the AFP to be claimed by a person entitled to possession of the property or the finder of the property, and provides a mechanism for dealing with competing claims of entitlement. New regulation 29 also provides that unclaimed liquid property becomes public money within the meaning of the Financial Management and Accountability Act 1997.
New regulation 30 clarifies the procedures for the disposal of unclaimed property. In particular, it enables the Commissioner to dispose of the property by public auction or by other appropriate means.
New regulation 31 clarifies procedures for returning or otherwise disposing of property that was seized by the AFP or held for evidentiary use in legal proceedings.
New regulation 32 clarifies notice procedures for the disposal of property by public auction.
Item 18
Item 18 inserts a new heading: 'Tart 6 Miscellaneous". Item 18 also inserts a new regulation that remakes regulation 44 of the Principal Regulations, dealing with the Commissioner's powers of delegation.
Items 19 to 22
Items 19 to 22 renumber and make consequential amendments to regulations 46 and 48 of the Principal Regulations.
Item 23
Item 23 repeals regulation 49 of the Principal Regulations. The attachment of salaries to satisfy judgment debts is dealt with in regulation 13.
Item 24
Item 24 renumbers Schedule 4 (Forms) as Schedule 1 (Forms).
Items 25
Item 25 substitutes a new form of undertaking for members and special members that reflects changes in terminology in the Act.
Items 26 and 27
Items 26 and 27 make minor amendments to Forms 2 and 3 of Schedule 4, consequent upon renumbering.
Item 28
Item 28 repeals Forms 4 and 5 of Schedule 4. An undertaking or oath in relation to secrecy may become a condition of a person's employment contract under section 24 of the Act.
Items 29 and 30
Items 29 and 30 renumber Forms 6 and 7 (Warrants) as Forms 4 and 5.
Item 31
Item 31 repeals Schedule 5, which sets out the form of the oath or affirmation necessary for the purposes of hearings by an Appeal Committee. Schedule 5 is no longer needed in the Principal Regulations because new Part 3 deals with, and prescribes all relevant requirements for, appeals under the Principal Regulations.
Item 32
Item 32 renumbers Schedule 6 (Fees) as Schedule 2.
Item 33 to 35
Items 33 to 35 make minor consequential amendments to Schedule 6 of the Principal Regulations, consistent with the new structure and terminology of the Act.