Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN FEDERAL POLICE (DISCIPLINE) REGULATIONS (AMENDMENT) 1992 NO.284

STATUTORY RULES 1992 No. 284

Issued by the Authority of the Minister for Justice

Australian Federal Police Act 1979

Australian Federal Police (Discipline) Regulations (Amendment)

The purpose of the amendment is to abolish disciplinary offences in the nature of unintentional inefficiency and to provide for mandatory dismissal of members and staff members of the Australian Federal Police (the AFP) who are convicted of an Australian offence and where the sentence indicates that the matter is sufficiently serious.

Regulation 1 provides that the Australian Federal Police (Discipline) Regulations (the Discipline Regulations) are amended.

Regulations 2, 4, 9 and 12 replace Roman numerals in the Part headings in the Discipline Regulations with arabic numerals in accordance with current drafting practice.

Regulation 3 amends cross-references in regulation 2 of the Discipline Regulations to provisions which are affected by the amending regulations 5 and 6. It also adds a new subregulation 2(5) which provides that references to a "disciplinary offence" in Part 3 do not include disciplinary offences which make a member or staff member liable to dismissal under Part 4. Accordingly, a person liable to dismissal under Part 4 is not subject to any of the procedures provided by Part 3.

Regulations 5 to 8 amend Part 2 of the Discipline Regulations. Part 2 specifies disciplinary offences and the amendments have the overall effect of abolishing disciplinary offences of inefficiency (other than inefficiency arising from corruption or personal malice). Inefficiency should now normally be dealt with, where necessary, by termination of appointment under paragraph 26E(2)(b) of the Australian Federal Police Act 1979, a provision which is intended to provide for cases where a person is unsuitable to continue service in the AFP for reasons which it is not appropriate to address through disciplinary proceedings.

Regulation 5 substitutes a new regulation 3, which requires that members and staff members of the AFP perform their duties courteously, lawfully and in accordance with specified provisions of the AFP General Orders and Instructions, but no longer lists forms of unintentional inefficiency as disciplinary matters. For example, members and staff members are still liable to disciplinary action for a breach of those parts of General Order 21 which deal with the right to use a police vehicle but not for a breach of those which deal with matters such as care and maintenance of police vehicles.

Regulation 6 omits the old regulation 4, which treated unauthorised absence from duty as a disciplinary matter.

Regulation 7 substitutes a new regulation 12, which prohibits a member or staff member from intentionally prejudicing police services by deliberate inefficiency or unauthorised absence from duty. The regulation allows disciplinary proceedings to be instituted in relation to inefficiency and absenteeism where they arise from corrupt or other improper personal motives. The old regulation 12 dealt solely with malingering.

Regulation 8 omits the old paragraphs 18(1)(b) and (c), which provided that non-compliance with a General Order or Instruction and negligent or careless discharge of duties constituted disciplinary offences. To the extent that it is still appropriate to deal with these matters in a disciplinary context, they will now be covered by the substituted regulations 3 and 12, in Division 1 of Part 2. Paragraph 18(1)(a) of the Discipline Regulations, which remains in force, provides that contravention of, or failure to comply with, a provision of Division 1 is a disciplinary offence.

Regulations 10 to 13 insert a new Part 4 in the Discipline Regulations and make associated amendments to the present Parts 3 and 5. The effect of these amendments is to provide a special disciplinary procedure for members and staff members who commit a disciplinary offence by incurring a serious criminal conviction under Australian law, seriousness being judged by severity of sentence. Such persons will be liable to mandatory dismissal by the Commissioner of Police, subject to provision for reinstatement where a conviction is subsequently nullified or the sentence reduced sufficiently. Cognate delegated legislation, the Complaints (Australian Federal Police) Regulations (Amendment), which commences simultaneously with these regulations, complement amending regulations 10 to 13 by providing, in effect, that Part 4 disciplinary offences are not to be heard by the Federal Police Disciplinary Tribunal. Because of the mandatory penalty and the objective character of the offence such a hearing would serve no purpose.

Regulation 10 amends subregulation 19(1) of the Discipline Regulations to clarify that it authorises the Commissioner to institute disciplinary proceedings under Part 3 against a member or staff member only where such proceedings are not excluded by the new subregulation 2(5), i.e. only where the person is not liable to mandatory dismissal under Part 4.

Regulation 11 inserts the new Part 4.

•       New regulation 23 provides that Part 4 applies only in relation to offences committed on or after its commencement.

•       New regulation 24 is an interpretation provision. Subregulation 24(3) provides that findings that a person is riot guilty because of mental disorder or is guilty but insane do not constitute convictions for the purposes of Part 4. Subregulation 24(4) excludes contraventions of Part XIIIA of the Family Law Act 1975 from the ambit of Part 4.

•       New regulation 25 provides that a member or staff member is liable to mandatory dismissal:

-       if sentenced to imprisonment for more than 24 hours for a criminal offence against a Commonwealth, State or Territory law, unless the sentence is imposed because of failure to pay a fine or is suspended (subregulation (1)); or

-       if a suspended sentence of imprisonment for such an offence is brought into operation for a reason other than failure to pay a fine (subregulation (2)).

The liability arises only after possibilities for appeal have ceased to be available (subregulation (3)). If satisfied beyond reasonable doubt that a person has become liable to mandatory dismissal the Commissioner is required to dismiss the person (subregulation (4)) and promptly provide written notice stating the reason for and date of dismissal (subregulation (5)). New regulation 26 provides for service of such notices on persons in prison or other lawful detention.

•       New regulation 27 allows a person dismissed under regulation 25 to seek reinstatement if the conviction which gave rise to the dismissal is later nullified or the associated sentence reduced to one which would not have made the person liable to mandatory dismissal (subregulation (1)). However, if the person has incurred another conviction which would have made the person liable to mandatory dismissal if he or she had still been serving in the AFP, the person is not entitled to seek reinstatement (subregulations (2) and (3)). If the person seeking reinstatement has incurred no further convictions (including foreign convictions) since being dismissed he or she is automatically entitled to reinstatement, with restoration of previous entitlements, rank and seniority, upon application (subregulations (4) and (7)). In other cases reinstatement and the conditions on which it is granted are at the Commissioner's discretion (subregulations (5) and (8)). This is intended to allow for the fact that where a serving member incurs a foreign or minor Australian conviction the member is liable to disciplinary action (including discretionary dismissal) but that convictions incurred by a member after dismissal fall outside the disciplinary jurisdiction of the AFP. Accordingly, in making a decision under subregulation (5) or (8) the Commissioner would be expected to give weight to considerations which would be applicable to a disciplinary decision arising out of a foreign or minor Australian conviction, e.g. the seriousness of the offence and, in the case of a foreign offence, whether the act would have constituted an offence if done in Australia. In all cases where a person seeks reinstatement the Commissioner must make a decision and notify the applicant of it within 14 days (subregulation (6)).

•        New regulation 28 provides that a person who is dismissed and reinstated under Part 4 may still be subject to disciplinary proceedings under Part 3. This would apply to a case where the person was reinstated following a reduction in the original sentence. (By way of comparison, the Commissioner's discretionary powers under subregulations 27(4) and (7) compensate for the fact that Part 3 disciplinary proceedings are not applicable to convictions incurred after dismissal.)

•        New regulation 29 makes special provision for delegation of the Commissioner's powers under Part 4 which is more restrictive than the delegation power provided by the present regulation 49 in relation to the rest of the Discipline Regulations.

Regulation 13 amends regulation 49 of the Discipline Regulations to provide that the Commissioner's powers under Part 4 may only be delegated in accordance with regulation 29, and not regulation 49.

Regulation 14 adds a new Schedule 1 at the end of the Discipline Regulations to specify provisions of the AFP General Orders and Instructions not relating to unintentional inefficiency, for the purposes of the new regulation 3.

Regulation 15 provides that the amendments do not apply to acts or omissions which occurred before the commencement of the new regulations.