Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN FEDERAL POLICE (DISCIPLINE) REGULATIONS (AMENDMENT) 1995 NO. 191

Statutory Rules 1995 No. 191

Issued by the Authority of the Minister for Justice

Australian Federal Police Act 1979

Australian Federal Police (Discipline) Regulations (Amendment)

Section 70 of the Australian Federal Police Act 1979 (the Act) provides that the Governor-General may make regulations for the discipline of the AFP.

The amendments to the Australian Federal Police (Discipline) Regulations (the regulations) are set out below.

Regulation 3

Regulation 3 amends subregulation 2(1) of the regulations by inserting the definitions of 'AFP appointee' and 'Federal police officer' and by omitting the definition of 'member'. This amendment enables the term 'AFP appointee' to be used in those parts of the regulations which refer to both 'members' and 'staff members' better reflecting the situation that the Act creates, insofar as is practicable, a unified work force. In addition, subparagraph 2(3)(h) of the regulations is omitted as a consequence of the proposed amendment at Regulation 9 below.

Regulation 4

This regulation amends regulation 3 of the regulations. The main purpose of this amendment is to indicate that a reference to a General Order or General Instruction refers to one which is in force on 1 July 1995. This is a consequence of subsection 49A(1) of the Acts Interpretation Act 1901 which has the effect that General Orders and General Instructions can only be incorporated or adopted in regulations as they exist at the time the regulations take effect.

Regulation 5

Regulation 5 of the regulations is amended by adding the requirement that an AFP appointee must have regard to any official guidelines that are applicable to the performance of his or her duties. This provision is intended to include all Commonwealth guidelines which apply to the AFP but the amendment is not intended to give mandatory effect to relevant guidelines or to remove the discretion of individual appointees.

Regulation 6

The amendment substitutes 'An AFP appointee must:' for 'A member or staff member shall:' in regulation 8 of the regulations.

Regulation 7

This regulation amends paragraph 10(e) of the regulations by providing that an AFP appointee must have the written approval of his or her supervisor before the AFP appointee, in an official capacity, may give any testimonial of character or give character evidence in a criminal proceeding, except in compliance with an order or direction of a court, Judge or magistrate.

Regulation 8

This regulation substitutes 'An AFP appointee must' for 'A member or staff member shall' in subregulation 11 (1) of the regulations.

Regulation 9

This regulation amends regulation 13 by omitting subregulation 13(1) and adding subregulation 13(3) and adding subregulations 13(3) and 13(4) which deal with the unauthorised access, use or disclosure of information. The purpose of this amendment is to prevent an AFP appointee from improperly using his or her position in order to obtain access to information or making an unauthorised use or disclosure of information which has come into their possession as a result of their appointment to the AFP. The amending regulation prohibit an appointee from using or communicating to any other person any information that comes to the appointee's knowledge by reason of their being an AFP appointee or from using his or her position as an appointee to obtain access to information, except in the performance of his or her duties.

Regulation 10

The regulation substitutes 'An AFP appointee' for 'A member or staff member' in regulation 15 of the regulations.

Regulation 11

The regulation substitutes 'An AFP appointee' for 'A member or staff member' in regulation 17 of the regulations.

Regulation 12

This regulation amends subregulation 19(1D) of the regulations by after 'caution' adding 'or admonition'. The purpose of this and subsequent related amendments is to allow the Commissioner to deal with an appropriate disciplinary offence by way of an admonition.

Regulation 13

This regulation amends regulation 19AA of the regulations by adding 'or admonition' in relevant places. It also amends paragraph 19AA(4)(g). This amendment prescribes the process by which the Commissioner may offer an admonition or a caution to an appointee for a disciplinary offence.

Regulation 14

This regulation amends subregulation 19A(1A)of the regulations by adding reference to section 66B of the Complaints (Australian Federal Police) Act 1981. This permits the Commissioner to institute proceedings against an appointee where a member is offered an admonition for a breach of discipline and the member does not accept the admonition.

Regulation 15

Regulation 15 amends regulation 19B of the regulations by inserting 'or admonition' in relevant places to prescribe the processes by which the Commissioner may offer an AFP appointee an admonition where the Commissioner is required to give effect to a proposal by the Ombudsman or the Attorney-General gives a direction in relation to a disciplinary offence under subsection 11 (4) or subsection 11 (7) of the Complaints (Australian Federal Police) Act 1981.

Regulation 16

This regulation will omit paragraphs 22(1)(d) and (c) of the regulations which provide separate penalties in the case of a member or a staff member and adds a new paragraph 22(1)(d) dealing with appointees. It also omits subregulation 22(1B) in the regulations which deals with the determination of salary of a member who is reduced to a lower rank. The regulation substitutes new words before subregulation 22(3) of the regulations to simplify the reference to AFP appointees.

Regulation 17

Regulation 17 amends regulation 46 of the regulations by adopting common provisions for AFP appointees in relation to the determination of relative seniority. The amendment replaces the provisions dealing separately with the seniority of members and staff members.

Regulation 18

This amendment substitutes a new Schedule 1 of the regulations to prescribe the General Orders and General Instructions that AFP appointees must comply with for disciplinary purposes. The purpose of this amendment is to omit from Schedule 1 those General Orders and General Instructions that have been cancelled by the Commissioner.

Regulation 19

Regulation 19 makes a number of minor amendments to the regulations related to substituting the terms 'AFP appointee', 'appointee' or 'Federal Police officer' for the terms 'member' or 'member or staff member'. It also amends subregulation 16(4) of the regulations by omitting a 'section' and substituting 'regulation' to correct a typographical error.