Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN FEDERAL POLICE (DISCIPLINE) REGULATIONS (AMENDMENT) 1993 NO. 306

STATUTORY RULES 1993 No. 306

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 to regulation 19 is to require the Commissioner of the Australian Federal Police (the Commissioner) to express a view as to the penalty or range of penalties which the Commissioner considers appropriate when disciplinary proceedings are instituted. The purpose of the amendments to subregulation 21(2) are to reflect current drafting practice, and to replace the existing standard of proof which is applied in disciplinary proceedings before the Federal Police Disciplinary Tribunal (the Tribunal). Under the current regulations, the criminal standard of proof beyond reasonable doubt is required. This is to be replaced by the civil standard of proof on the balance of probabilities.

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

Regulation 2 amends the present regulation 19, which deals with the institution of disciplinary proceedings by the Commissioner, by inserting new subregulations 19(4A) and (4B). Subregulation 19(4A) requires the Commissioner to express a view as to the penalty or range of penalties which the Commissioner considers appropriate, given the facts available at the time of institution of proceedings. Subregulation 19(4B) ensures that the functions of the Tribunal and Federal Court of Australia are not affected by a view expressed by the Commissioner under subregulation 19(4A) in relation to the imposition or review of a penalty. A capricious or unreasonable decision by the Commissioner imposing a higher penalty would be reviewable under the Administrative Decisions (Judicial Review) Act 1977 or under the appeals procedure in the Complaints (Australian Federal Police) Act 1981 (the Complaints Act) as being a penalty unauthorised by law or constituting an error of law.

It should be noted that these amendments do not apply to charges made as a result of an investigation under the Complaints Act.

Subregulation 3.1 amends subregulation 21(2) by substituting "must" for "shall" to reflect current drafting practice.

Subregulation 3.2 amends subregulation 21(2), which applies the criminal standard of proof beyond reasonable doubt in proceedings before the Tribunal. The amendment applies the civil standard of proof on the balance of probabilities in such proceedings. The level of proof required in these disciplinary proceedings will not be significantly different as a result of this change where the breach of discipline is serious. This is because the test provides for a higher standard of proof depending on the seriousness of the issue and the gravity of consequences flowing from an adverse finding of the Tribunal. The amendment ensures that the AFP's internal disciplinary scheme is an effective personnel management tool, and is consistent with the standard of proof required in most other Australian police forces. A similar amendment has been made to the Complaints (Australian Federal Police) Regulations.