Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN FEDERAL POLICE (DISCIPLINE) AMENDMENT REGULATIONS 2000 (NO. 2) 2000 NO. 139

EXPLANATORY STATEMENT

Statutory Rules 2000 No. 139

Issued by the Authority of the Minister for Justice and Customs

Australian Federal Police Act 1979

Australian Federal Police (Discipline) Amendment Regulations 2000 (No. 2)

The Australian Federal Police Legislation Amendment Act 2000 (No. 9 of 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 40P of the Act provides that regulations may be made for the purposes of sections 40M and 40N of the Act (dealing with drug testing).

The Australian Federal Police (Discipline) Regulations (the Principal Regulations), set out various matters relating to the discipline and conduct of the AFP, including the Commissioner's powers in relation thereto. These Regulations make necessary changes to the Principal Regulations, including the addition of new provisions and the removal of provisions that are no longer required, as a consequence of the Amendment Act.

In particular, these Regulations:

*        insert definitions for the terms accredited laboratory, medical practitioner and nurse;

*       include as improper conduct, acting in a manner that is prejudicial to the good order and discipline of the AFP and acting in a manner that brings, or is likely to bring, discredit to the reputation of the AFP;

* insert Part 3 dealing with drug testing for the purposes of sections 40M and 40N of the Act. This Part contains provisions that: detail the way in which a breath test, blood test or prohibited drug test is to be conducted; provide the recording requirements in relation to the tests; detail the requirements for the disclosure of information revealed by the tests;

* detail the procedures to be followed if the results of tests are challenged; prescribe that the provision and analysis of a urine sample must be in accordance with the Australian Standard AS 4308 - 1995 "Recommended practice for the collection, detection and quantification of drugs of abuse in urine"; prescribe the procedures to be followed by an authorised person when taking a body sample for the purposes of a blood test or prohibited drug test; limit the analysis of a body sample to determining the concentration of alcohol in the blood or whether the body sample contains alcohol or a prohibited drug, as the case requires; and provide for certificates to be given to the subject of the tests, and that such certificates will be evidence of the matters stated therein;

* provide that an AFP employee or a special member commits a disciplinary offence if he or she fails to comply with: a Commissioner's Order; or subsection 40L(3) of the Act (dealing with financial statements); or subsection 40M(3) or 40N(5) of the Act (dealing with drug testing); and

* remove references to admonitions from the Principal Regulations.

Details of the Regulations are set out in the Attachment.

The 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 by Proclamation on 2 July 2000.

ATTACHMENT

DETAILS OF THE AUSTRALIAN FEDERAL POLICE (DISCIPLINE) AMENDMENT REGULATIONS 2000 (No.

Regulation 1

The name of these Regulations is the Australian Federal Police (Discipline) Amendment Regulations 2000.

Regulation 2

Regulation 2 provides that these Regulations commence on the same day as the Australian Federal Police Legislation Amendment Act 2000 (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.

Regulation 3

Regulation 3 provides that Schedule 1 to these Regulations amends the Australian Federal Police (Discipline) Regulations (the Principal Regulations).

Regulation 4

Regulation 4 provides that regulation 20 of the Principal Regulations, as in force immediately before the commencement of these Regulations, continues to apply to a person suspended from duty under that regulation.

Schedule 1 - Amendments

Item 1

Item 1 renames the Principal Regulations as the Australian Federal Police (Discipline) Regulations 1979.

Item 2

Item 2 substitutes a new interpretation regulation which removes references to expressions that are no longer required, and inserts new references where necessary.

Item 3

Item 3 replaces the heading to Part 2 of the Principal Regulations with "Conduct of AFP employees and special members".

Item 4

Item 4 omits the heading to Division 1 of Part 2 of the Principal Regulations, consistent with the new structure of the Principal Regulations.

Item 5

Item 5 substitutes a new regulation, dealing with the performance of duties, in place of regulation 3 of the Principal Regulations. The majority of regulation 3 has been re-enacted in section 39 of the Act, leaving those matters not covered in section 39, in the new regulation.

Item 6

Item 6 renumbers and remakes subregulation 5(4) of the Principal Regulations. Subregulations 5(1), (2) and (3) are not remade because they have been re-enacted in section 40 and 40A of the Act.

Items 7, 13, 14, 18, 35, 46, 50, 62 and 68

Items 7, 13, 14, 18, 35, 46, 50, 62 and 68 respectively renumber regulations 6, 12, 13, 16, 19AA, 19A, 19B, 21 and 24 of the Principal Regulations. The regulations are renumbered as 5, 11, 12, 14, 3 2, 3 3, 3 4, 3 5 and 3 8 respectively.

Items 8, 10 and 12

Items 8, 10 and 12 respectively renumber and remake regulations 7, 9 and 11, with minor amendments to terminology necessitated by changes to the terminology in the Act.

Item 9

Item 9 renumbers and remakes regulation 8 in relation to property in the possession of an AFP employee or special member (except for paragraph 8(c)), with minor amendments to terminology. Paragraph 8(c) is no longer required in the Principal Regulations.

Item 11

Item 11 renumbers and remakes regulation 10 (dealing with improper conduct), with minor amendments to terminology. In addition, it incorporates paragraphs 18(1)(f) and (g) of the Principal Regulations.

Former paragraph 1 0(e) (dealing with testimonials of character) is not included as it will be dealt with in official AFP guidelines.

Item 15

Item 15 omits the words "or criminal" from subregulation 13(2) of the Principal Regulations. Those words are no longer needed because the definition of a "disciplinary offence" contained in new regulation 29 includes criminal offences.

Item 16

Item 16 omits regulation 14 of the Principal Regulations. Regulation 14 (dealing with seeking influence or interest) is no longer needed because under the new employment regime in the Act there are no promotions and transfers. In addition, using the fact of being an AFP employee or special member to obtain a benefit or advantage is improper conduct under new regulation 9.

Items 17, 19 and 20

Items 17, 20 and 19 respectively renumber and remake regulations 15 and 17, and subregulation 16(1) of the Principal Regulations, with minor amendments to terminology necessitated by changes to the terminology in the Act.

Item 21

Item 21 inserts, after regulation 17 of the Principal Regulations, a new Part 3 (dealing with drug testing for the purposes of sections 40M and 40N of the Act). The new provisions in Part 3 are as follows:

*       Regulation 16 defines the term authorised person for the purposes of new regulations 17 and 18.

*       Regulation 17 provides that the Commissioner may authorise a person for the purposes of subsections 40M(I) or 40N(1), (2) or (4) of the Act.

Regulation 18 provides that persons specified in new column 2 of Schedule 1 are authorised to conduct the test specified in column 1 of that Schedule, and to operate equipment for that purpose.

Regulation 19 provides requirements for the conduct of a breath test, blood test or prohibited drug test. These include a requirement that, amongst other things, the test be conducted by a person of the same sex as the subject of the test.

Regulation 20 provides that a certificate provided under new Part 3 is evidence of the matters stated in the certificate.

Regulation 21 provides the recording requirements in relation to a breath test, blood test or prohibited drug test. These requirements include, amongst other things, the keeping of records (including body samples) for 2 years in a secure location, and the destruction of records after that period.

Regulation 22 limits the disclosure of information revealed by a breath test, blood test or prohibited drug test. A person, other than the subject of a test, is not able to disclose information revealed by a test unless, amongst other things, the information is already known or if the subject consents in writing to the disclosure.

Regulation 23 provides for retesting if the results of a breath test, blood test or prohibited drug test are challenged.

Regulation 24 details the equipment to be used and certificate requirements in relation to a breath test. Procedures in relation to a breath test will be contained in the AFP's official guidelines. In addition, regulation 24 provides that an AFP employee or special member who is directed to undergo a breath test, may request to also undergo a blood test.

Regulation 25 provides that the provision and analysis of a urine sample must be in accordance with the Australian Standard AS 4308 - 1995 "Recommended practice for the collection, detection and quantification of drugs of abuse in urine", as at 2 July 2000. The Australian Standard will be reproduced in the AFP's official guidelines as at 2 July 2000.

Regulation 26 details the procedures to be followed by an authorised person when taking a body sample (other than a urine sample because this is exhaustively dealt with in regulation 25), for the purposes of a blood test or prohibited drug test. These include, amongst other things, the placing of approximately equal quantities of the sample into two containers.

*       Regulation 27 provides that the analysis of a portion of a body sample (other than a urine sample) must be to determine the concentration of alcohol in the blood or whether the body sample contains alcohol or a prohibited drug, as the case requires. If the first analysis indicates the presence of alcohol or a prohibited drug in the sample, an analysis of another portion of the sample must be conducted.

*       Regulation 28 provides that certificates must be given to the subject of the blood test or prohibited drug test and to the authorised person who directed that subject to undergo the test. Subregulations 28(2) and (3) provide the minimum requirements of a certificate given under this regulation.

The Regulations do not provide directly for the consequence of a positive test result. A positive test result may, however, constitute a breach of official guidelines and as such be a disciplinary offence. In addition, rehabilitation and counselling are available.

Item 22

Item 22 replaces the heading of Division 2 of Part 2 of the Principal Regulations with 'Tart 4 Disciplinary offences".

Item 23

Item 23 substitutes regulation 29 for regulation 18 of the Principal Regulations (dealing with disciplinary offences). Regulation 29 updates and largely retains the effect of regulation 18. In particular it retains the effect of former paragraph 18(1)(a) (which refers to Division 1 of the Principal Regulations) by reference to Part 2. Part 2 largely contains matters dealt with in Division 1 of the Principal Regulations.

Regulation 29 also retains the effects of former paragraphs 18(1)(d), (f) and (g) by providing, amongst other things, that an AFP employee or a special member commits a disciplinary offence if he or she engages in improper conduct as set out in new regulation 9. New regulation 9 (dealing with improper conduct) contains equivalents to paragraphs 18(1)(d), (f) and (g). Former paragraph 18(1)(h) is remade in regulation 29.

Regulation 29 also incorporates the following matters from the Act, so that an AFP employee or a special member commits a disciplinary offence if he or she fails to comply with:

* a Commissioner's Order; or

* subsection 40L(3) of the Act (dealing with financial statements); or

* subsection 40M(3) or 40N(5) of the Act (dealing with drug testing).

Item 24

Item 24 omits the heading of Division 3 of Part 2 of the Principal Regulations, consistent with the new structure of the Principal Regulations.

Item 25

Item 25 renumbers and remakes regulation 18A of the Principal Regulations (dealing with declarations of relevant disciplinary offences), with minor amendments to terminology.

In addition, it provides that acting in a manner that is prejudicial to the good order and discipline of the AFP and acting in a manner that brings, or is likely to bring, discredit to the reputation of the AFP, are not relevant disciplinary offences for the purposes of the Act. Relevant disciplinary offences can lead to the loss of certain superannuation rights and benefits under Part VA of the Act.

Item 26

Item 26 replaces the heading of Part 3 of the Principal Regulations with Tart 5 Commissioner's Powers".

Items 27 and 28

Item 27 renumbers regulation 19 of the Principal Regulations and Item 28 replaces its heading with Proceedings for disciplinary offences".

Item 29

Item 29 remakes subregulation 19(1) with minor changes to terminology.

Item 30

Item 3 0 amends subregulation 19(1 B), consequent upon renumbering.

Items 31, 36 to 42, 45, 51 to 57 and 60

Due to the difficulty of differentiating between the disciplinary effect of a caution and an admonition, the outdated notion of "admonitions" is removed from the Principal Regulations. Cautions are therefore to be used for all situations where both a caution or admonition would have been possible.

In order to achieve this, items 31, 36 to 42, 45, 51 to 57, and 60 remove all references to admonitions in former subregulation 19(1D) and former regulations 19AA and 19B of the Principal Regulations, without changing their effect in relation to cautions.

Items 43, 44, 47, 58 and 59

Items 43 and 58 make minor amendments to former paragraphs 19AA(4)(g) and 19B(4)(g) (dealing with cautions and the Complaints (Australian Federal Police) Act 1981 (Complaints Act)), consequent upon the removal of admonitions from the Principal Regulations.

Items 44 and 59 omit former paragraphs 19AA(4)(h) and 19B(4)(h) of the Principal Regulations. These paragraphs refer to section 66B of the Complaints Act (dealing with proceedings involving admonitions) and are no longer be required. Similarly, item 47 removes a reference to section 66B from subregulation 19A(1 A).

Item 32

Item 32 amends subregulation 19(1D) of the Principal Regulations, consequent upon renumbering.

Items 33, 48 and 49

Items 33, 48 and 49 make minor amendments to subparagraphs 19(2)(d)(ii) and 19A(2)(d)(ii) and paragraph 19A(2)(e) of the Principal Regulations, by replacing the words "his" and "he" in those paragraphs with "his or her" and "he or she".

Item 34

Item 34 makes a minor amendment to subregulation 19(4A) of the Principal Regulations, by replacing "the Complaints (Australian Federal Police) Act 198P' with "the Complaints Act".

Item 61

Item 61 omits regulation 20 (dealing with suspension from duty). Suspension for disciplinary offences is a matter covered in the Australian Federal Police Regulations 1979.

Item 63

Item 63 makes a minor amendment to subparagraph 21 (1)(a)(i), consequent upon renumbering.

Item 64

Item 64 renumbers and remakes regulation 22 (dealing with penalties) as regulation 36, with minor consequential amendments as a result of changes to terminology, the removal of the notion of admonitions, and the abolition of the current rank and level structure.

Item 65

Item 65 renumbers and remakes regulation 47 of the Principal Regulations (dealing with the payment of fines) as regulation 37.

Item 66

Item 66 replaces the heading of Part 4 of the Principal Regulations with 'Tart 6 Termination of employment for criminal conviction'.

Item 67

Item 67 omits regulation 23 of the Principal Regulations as it is no longer required.

Item 69

Item 69 renumbers and remakes regulation 25 of the Principal Regulations (dealing with the termination of employment or appointment in certain cases) as regulation 39, with minor changes to terminology.

Subregulation 25(4) is not remade, removing the need for the Commissioner to dismiss a person who is subject to mandatory dismissal. The new regulation results in the j termination of employment or appointment of such AFP employees or special members, by operation of the law.

Items 70, 71 and 72

Item 70 renumbers regulation 26 of the Principal Regulations (dealing with the service of notices under existing regulation 25) as regulation 40. Item 71 replaces the heading of regulation 26 with 'A0 Service of notice under subregulation 39(5)". Item 72 makes a minor amendment to subregulation 26(1), consequent upon renumbering.

Items 73 and 74

Items 73 and 74 respectively renumber and remake regulations 27 (dealing with reinstatement) and 28 (dealing with other disciplinary provisions not being excluded on reinstatement), subject to minor amendments consequent upon changes to terminology and the abolition of the current rank and level structure.

Item 75

Item 75 omits regulation 29 of the Principal Regulations, dealing with delegation. Delegation of powers is a matter covered in new Part 7 of the Principal Regulations.

Item 76

Item 76 replaces the heading of Part 5 of the Principal Regulations with 'Tart 7 Miscellaneous".

Item 77

Item 77 omits regulations 46, 47 and 48 of the Principal Regulations. Regulation 46, dealing with seniority, is not required as a result of the abolition of the current rank and level structure. Regulation 47, dealing with the payment of fines, is remade in a new regulation. Regulation 48, dealing with the application of General Orders and General Instructions to staff members, is no longer required in the Principal Regulations as it is dealt with in sections 39 and 40 of the Act.

Item 78

Item 78 substitutes a new regulation, dealing with delegation, in place of regulation 49 of the Principal Regulations. The new regulation provides that the Commissioner may, in writing, delegate any of his or her powers under the Principal Regulations to a Deputy Commissioner or an AFP employee.

Item 79

Item 79 replaces Schedule 1 to the Principal Regulations with a new Schedule 1. New Schedule 1 prescribes the persons authorised to conduct tests and to operate equipment for the purpose of the drug testing regulations contained in new Part 3 of the Principal Regulations. The matters contained in existing Schedule 1 are no longer needed as they are dealt with in sections 39 and 40 of the Act.

Item 80

Item 80 is a table of additional amendments which amends numerous regulations of the Principal Regulations, consistent with the changes to terminology from "appointee" to 44employee or special member".


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