An Act to establish the Australian Federal Police, and for
related purposes
Part I—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Australian
Federal Police Act 1979.
2
Commencement [see
Note 1]
(1) Sections 1, 2, 4 and 6, Division 1
of Part IV and sections 28 and 70 shall come into operation on the
day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act
shall come into operation on a date to be fixed by Proclamation.
3
Repeal
The Commonwealth Police Act 1957
is repealed.
3A
Overview of Act
Constitution of the Australian Federal Police
(1) Division 1 of Part II of this
Act provides that the Australian Federal Police consists of a Commissioner of
Police, one or more Deputy Commissioners of Police, AFP employees, special
members and special protective service officers.
Commissioner and Deputy Commissioners
(2) The Commissioner and Deputy Commissioners
are appointed by the Governor‑General. Division 1 of Part III
sets out matters dealing with such appointments.
AFP employees
(3) The Commissioner may engage persons as
AFP employees. Division 2 of Part III covers matters to do with the
employment of AFP employees. For example, it deals with the remuneration and
terms and conditions of employment of AFP employees, how AFP employees can
resign or retire and how the Commissioner may terminate the employment of AFP
employees.
Members of the Australian Federal Police
(4) The Commissioner and any Deputy
Commissioner are members of the Australian Federal Police. Under Division 2
of Part IV, the Commissioner may declare AFP employees to be members and
certain members may be declared to be commissioned police officers. Under
Division 1 of Part II, members provide police services and that
Division also deals with powers of members.
Special members of the Australian Federal Police
(5) Under Division 3 of Part IV,
the Commissioner may appoint persons as special members to assist the
Australian Federal Police in carrying out its functions.
Protective service officers of the Australian Federal
Police
(5A) Under Division 3A of Part IV, the
Commissioner may declare AFP employees to be protective service officers.
Divisions 3 and 4 of Part II deal with the powers of protective
service officers.
Special protective service officers of the Australian
Federal Police
(5B) Under Division 3B of Part IV, the
Commissioner may appoint persons as special protective service officers to
assist in performing protective service functions.
Commissioner’s command powers
(6) The Commissioner has the general
administration of, and the control of the operations of, the Australian Federal
Police. Part IV is mainly about the Commissioner’s command powers. For
example, the Commissioner may determine the duties of AFP employees and where
those duties are to be performed. Other topics covered by that Part include
secondment and drug testing.
Professional standards and dealing with AFP conduct or
practices issues
(6A) Part V provides for the setting of AFP
professional standards and the way in which AFP conduct or practices issues are
raised and dealt with.
Other matters
(7) This Act also:
(a) deals with the use of listening
devices in relation to offences (see Division 2 of Part II); and
(aa) deals with the powers of
protective service officers and certain other powers relating to protective
service functions (see Divisions 3 and 4 of Part II); and
(b) deals with when AFP employees lose
certain superannuation rights and benefits (see Part VA); and
(c) deals with other matters such as
secrecy obligations, offences and certain administrative matters (all of which
are contained in Part VI).
4
Interpretation
(1) In this Act, unless the contrary
intention appears:
adjustment payment means a payment made in
accordance with a determination that is continued in force by item 8 of
Part 1 of Schedule 3 to the Australian Federal Police Legislation
Amendment Act 2000 (including a payment made in accordance with such a
determination as amended or varied in accordance with that item).
AFP appointee means:
(a) a Deputy Commissioner; or
(b) an AFP employee; or
(c) a special member; or
(d) a special protective service
officer; or
(e) a person engaged overseas under
section 69A to perform duties overseas as an employee of the Australian
Federal Police; or
(f) a person who is:
(i) engaged under section 35
as a consultant, or independent contractor, to perform services for the
Australian Federal Police; and
(ii) a consultant, or
independent contractor, determined by the Commissioner under subsection 35(2)
to be an AFP appointee for the purposes of this paragraph; or
(g) a person who is assisting the
Australian Federal Police in the performance of its functions under an
agreement under section 69D.
AFP conduct issue has the meaning given by
sections 40RH and 40RJ.
AFP conduct or practices issue means:
(a) an AFP conduct issue; or
(b) an AFP practices issue.
AFP employee means a person engaged under
section 24.
AFP practices issue has the meaning given by
section 40RI and 40RJ.
AFP professional standards means professional
standards determined under Commissioner’s orders made for the purposes of
section 40RC.
alcohol screening test in relation to a
person, means a test of sample of the breath of the person carried out by means
of an approved screening device.
approved screening device means a device of a
type that is approved by the Minister under section 40R.
authority of a State or Territory means:
(a) a body, whether incorporated or
unincorporated, established for a public purpose by or under a law of that
State or Territory, other than a body that, under the regulations, is not to be
taken to be an authority of that State or Territory for the purposes of this
Act; or
(b) any other body declared by the
regulations to be an authority of that State or Territory for the purposes of
this Act, being:
(i) a body, whether
incorporated or unincorporated, established by the Governor, or a Minister of the
Crown, of that State or, in the case of the Northern Territory, a Minister; or
(ii) an incorporated
company in which that State or Territory, or a body corporate falling within paragraph (a)
or subparagraph (i), has a controlling interest.
authority of the Commonwealth means:
(a) a body, whether incorporated or
unincorporated, established for a public purpose by or under a law of the
Commonwealth, other than a body that, under the regulations, is not to be taken
to be an authority of the Commonwealth for the purposes of this Act; or
(b) any other body declared by the
regulations to be an authority of the Commonwealth for the purposes of this
Act, being:
(i) a body, whether
incorporated or unincorporated, established by the Governor‑General or by
a Minister; or
(ii) an incorporated
company in which the Commonwealth or a body corporate falling within paragraph (a)
or subparagraph (i) of this paragraph has a controlling interest.
blood test means a test of a person’s blood
to determine the amount of alcohol (if any) in the person’s blood.
body sample means any of the following:
(a) any human biological fluid;
(b) any human biological tissue
(whether alive or otherwise);
(c) any human breath.
breath test means a test of a person’s breath
to determine the amount of alcohol (if any) in the person’s blood.
category 1 conduct has the meaning given by
section 40RN.
category 1 conduct issue has the meaning
given by subsection 40RL(1).
category 2 conduct has the meaning given by
section 40RO.
category 2 conduct issue has the meaning
given by subsection 40RL(2).
category 3 conduct has the meaning given by
section 40RP.
category 3 conduct issue has the meaning
given by subsection 40RL(3).
collective agreement has the same meaning as
in the Workplace Relations Act 1996.
commissioned police officer means any member
in respect of whom a declaration under section 40D is in force.
Commissioner means the Commissioner of Police
referred to in section 6.
Commissioner’s Orders means orders under
section 38.
complainant has the meaning given by
subsection 40SA(3).
corrupt conduct: see engages in corrupt
conduct.
corruption issue has the same meaning as in
the Law Enforcement Integrity Commissioner Act 2006.
Deputy Commissioner means a Deputy
Commissioner of Police referred to in section 6.
duties includes responsibilities.
eligible employee has the same meaning as in
the Superannuation Act 1976.
engages in corrupt conduct has the same
meaning as in the Law Enforcement Integrity Commissioner Act 2006.
federal aspect, in relation to an offence
against a law of a State or of the Australian Capital Territory, has the
meaning given by subsection 4AA(1).
Note: This subsection defines State to
include the Northern Territory.
frisk search means:
(a) a search of a person conducted by
quickly running the hands over the person’s outer garments; and
(b) an examination of anything worn or
carried by the person that is conveniently and voluntarily removed by the
person.
give information that raises an AFP conduct
or practices issue has a meaning affected by subsection (3).
intelligence or security agency means an
authority or person responsible for intelligence gathering for, or the security
of, a country or a part of a country.
investigator for a category 3 conduct issue,
or a corruption issue, means the person to whom the issue is allocated for
investigation under section 40TN or 40TO.
law enforcement agency means an authority or
person responsible for the enforcement of laws.
manager for a category 1 conduct issue, or
category 2 conduct issue, means the person to whom the issue is allocated in
accordance with Commissioner’s orders issued for the purposes of subsection
40TA(1).
member means a
member of the Australian Federal Police.
member of the Australian Federal Police means
any of the following:
(a) the Commissioner of Police;
(b) a Deputy Commissioner of Police;
(c) an AFP employee in respect of whom
a declaration under section 40B is in force.
member of the unit constituted under section 40RD
means:
(a) the AFP appointee appointed as the
head of that unit under section 40RE; and
(b) any member, or special member, of
the Australian Federal Police assigned to that unit under section 40RF.
ordinary search means a search of a person or
of articles in the possession of a person that may include:
(a) requiring the person to remove his
or her overcoat, coat or jacket and any gloves, shoes and hat; and
(b) an examination of those items.
overseas means outside Australia and the
Territories.
pensioner
means:
(a) a person to whom an invalidity
pension within the meaning of the Superannuation Act is payable;
(b) a person to whom a pension is
payable under the Superannuation Act 1922 and who has been retired on
the ground of invalidity or of physical or mental incapacity to perform his or
her duties; or
(c) a person to whom a pension
referred to in paragraph (a) or (b) would be payable if payment had not
been suspended.
police services includes services by way of
the prevention of crime and the protection of persons from injury or death, and
property from damage, whether arising from criminal acts or otherwise.
police support services means services
related to:
(a) the provision of police services
by an Australian or foreign law enforcement agency; or
(b) the provision of services by an
Australian or foreign intelligence or security agency; or
(c) the provision of services by an
Australian or foreign regulatory agency.
powers includes authorities, rights,
privileges and immunities.
practices or procedures of the Australian
Federal Police has the meaning given by subsection 40RI(3).
prohibited drug means:
(a) a narcotic substance (within the
meaning of the Customs Act 1901); or
(b) any drug specified in a
determination under section 4A.
prohibited drug test means a test of a body
sample of a person to determine the presence (if any) of a prohibited drug in
the sample.
protective service functions means the
functions designated by the Minister under section 8A.
protective service offence means any of the
following:
(a) an offence in relation to a
person, place or thing in respect of which the Australian Federal Police is
performing protective service functions, being an offence under:
(i) section 24AB, 29,
46 (other than paragraph (b)), 47, 47A, 79, 89 or 89A of the Crimes Act
1914; or
(ii) the Crimes
(Internationally Protected Persons) Act 1976 or Part 2 of the Crimes
(Aviation) Act 1991; or
(iii) the Defence
(Special Undertakings) Act 1952 (other than subsection 31(2)); or
(iv) the Public Order
(Protection of Persons and Property) Act 1971 (other than section 11);
or
(v) the Nuclear Non‑Proliferation
(Safeguards) Act 1987 (other than section 25A, 27 or 28A, subsection
29(2), 29A(1), 30(1), 40(1), 58(2) or 65(1) or section 66); or
(va) the Aviation
Transport Security Act 2004 or regulations made under that Act; or
(vi) section 91.1 of
the Criminal Code;
(b) an offence against section 6
of the Crimes Act 1914, or section 11.1 or 11.4 of the Criminal
Code, that relates to an offence mentioned in paragraph (a);
(c) an offence against Subdivision A
of Division 72 of the Criminal Code that relates to a person, place
or thing in respect of which the Australian Federal Police is performing
protective service functions;
(d) an offence against Division 101
of the Criminal Code that relates to a person, place or thing in respect
of which the Australian Federal Police is performing protective service
functions;
(e) an offence in relation to a
person, place or thing in respect of which the Australian Federal Police is
performing protective service functions, being an offence against section 131.1,
141.1, 142.1, 147.1, 148.1 or 149.1 of the Criminal Code.
protective service officer means an AFP
employee in respect of whom a declaration under section 40EA is in force.
regulatory agency means an authority or
person who performs regulatory functions for a country or part of a country.
remedial action has the meaning given by
section 40TD.
resign means resign from the Australian
Federal Police.
retire means retire from the Australian
Federal Police.
senior executive AFP employee means an AFP
employee in respect of whom a declaration under section 25 is in force.
serious misconduct has
the meaning given by section 40K.
special member means a person appointed under
section 40E.
special protective service officer means a
person appointed under section 40EC.
State includes the Northern Territory.
Superannuation Act means the Superannuation
Act 1976 or the Superannuation Act 1990.
termination action has the meaning given by
section 40TE.
training and development action has the
meaning given by section 40TC.
(2) A reference in this Act to an officer of
police shall be read as including a reference to a police officer, or to any
member of a police force, however described.
(3) A reference in Part V to giving
information that raises an AFP conduct or practices issue includes a
reference to making a complaint or report that raises an AFP conduct or
practices issue.
4AA
State offences that have a federal aspect
Object
(1A) The object of this section is to identify State
offences that have a federal aspect because:
(a) they potentially fall within
Commonwealth legislative power because of the elements of the State offence; or
(b) they potentially fall within
Commonwealth legislative power because of the circumstances in which the State
offence was committed (whether or not those circumstances are expressed to be
acts or omissions involved in committing the offence); or
(c) the Australian Federal Police
investigating them is incidental to the Australian Federal Police investigating
an offence against a law of the Commonwealth or a Territory.
State offences that have a federal aspect
(1) For the purposes of this Act, a State
offence has a federal aspect if, and only if:
(a) both:
(i) the State offence is
not an ancillary offence; and
(ii) assuming that the
provision creating the State offence had been enacted by the Parliament of the
Commonwealth instead of by the Parliament of the State—the provision would have
been a valid law of the Commonwealth; or
(b) both:
(i) the State offence is
an ancillary offence that relates to a particular primary offence; and
(ii) assuming that the
provision creating the primary offence had been enacted by the Parliament of
the Commonwealth instead of by the Parliament of the State—the provision would
have been a valid law of the Commonwealth; or
(c) assuming that the Parliament of
the Commonwealth had enacted a provision that created an offence penalising the
specific acts or omissions involved in committing the State offence—that provision
would have been a valid law of the Commonwealth; or
(d) both:
(i) the Australian Federal
Police is investigating a matter relating to a relevant criminal activity that
relates to an offence against a law of the Commonwealth or a Territory; and
(ii) if the Australian
Federal Police is investigating, or were to investigate, a matter relating to a
relevant criminal activity that relates to the State offence—that investigation
is, or would be, incidental to the investigation mentioned in subparagraph (i).
Specificity of acts or omissions
(2) For the purposes of paragraph (1)(c),
the specificity of the acts or omissions involved in committing a State offence
is to be determined having regard to the circumstances in which the offence was
committed (whether or not those circumstances are expressed to be elements of
the offence).
State offences covered by paragraph (1)(c)
(3) A State offence is taken to be covered by
paragraph (1)(c) if the conduct constituting the State offence:
(a) affects the interests of:
(i) the Commonwealth; or
(ii) an authority of the
Commonwealth; or
(iii) a constitutional
corporation; or
(b) was engaged in by a constitutional
corporation; or
(c) was engaged in in a Commonwealth
place; or
(d) involved the use of a postal service
or other like service; or
(e) involved an electronic
communication; or
(f) involved trade or commerce:
(i) between Australia and
places outside Australia; or
(ii) among the States; or
(iii) within a Territory,
between a State and a Territory or between 2 Territories; or
(g) involved:
(i) banking (other than
State banking not extending beyond the limits of the State concerned); or
(ii) insurance (other than
State insurance not extending beyond the limits of the State concerned); or
(h) relates to a matter outside Australia;
or
(i) relates to a matter in respect of
which an international agreement to which Australia is a party imposes
obligations to which effect could be given by the creation of an offence
against the domestic laws of the parties to the agreement; or
(j) relates to a matter that affects
the relations between Australia and another country or countries or is
otherwise a subject of international concern.
(4) Subsection (3) does not limit paragraph (1)(c).
Definitions
(5) In this section:
ancillary offence, in relation to an offence
(the primary offence), means:
(a) an offence of conspiring to commit
the primary offence; or
(b) an offence of aiding, abetting,
counselling or procuring, or being in any way knowingly concerned in, the
commission of the primary offence; or
(c) an offence of attempting to commit
the primary offence.
authority of the Commonwealth has the same
meaning as in section 3AA of the Crimes Act 1914.
Commonwealth place has the same meaning as in
the Commonwealth Places (Application of Laws) Act 1970.
conduct has the same meaning as in the Criminal
Code.
constitutional corporation means a
corporation to which paragraph 51(xx) of the Constitution applies.
electronic communication means a
communication of information:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech,
music or other sounds; or
(d) whether in the form of visual
images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of
forms;
by means of guided and/or unguided electromagnetic energy.
engage in conduct has the same meaning as in
the Criminal Code.
State includes the Australian Capital
Territory and the Northern Territory.
State offence means an offence against a law
of a State.
4A
Commissioner may specify prohibited drugs
The Commissioner may, by written
determination, specify drugs for the purposes of the definition of prohibited
drug in section 4.
5
References in other laws
(1) In a law of the Commonwealth or of the Australian
Capital Territory:
(a) a reference to a Commonwealth
Police Officer shall be read as a reference to a member of the Australian
Federal Police;
(b) a reference to the Commonwealth
Police Force shall be read as a reference to the Australian Federal Police;
(c) a reference to the Police Force of
that Territory shall be read as a reference to the Australian Federal Police;
(d) a reference to an officer of
police of that Territory shall be read as a reference to a member of the
Australian Federal Police; and
(e) a reference to the Commissioner of
Police of that Territory, however described, shall be read as a reference to
the Commissioner.
(1A) Where a reference in a law of the
Commonwealth that does not specify the Australian Capital Territory is, in
effect, a reference to, or a reference that includes, that Territory, that
reference shall, for the purposes of subsection (1), be taken to be a
reference to that Territory.
(2) If:
(a) a provision of a law is, by virtue
of subsection (1), to be read as referring to a member of the Australian
Federal Police holding a particular rank; and
(b) a declaration is in force under subsection (3)
that a member is of that rank for the purposes of this paragraph;
the provision of the law is to be read as referring to the
member to whom the declaration applies.
(3) The Commissioner may, by writing, declare
that a member is of a particular rank for the purposes of paragraph (2)(b).
5A
Application and extension of Act and regulations
(1) This Act and the regulations apply
throughout the whole of Australia and also outside Australia.
(2) This Act and the regulations extend to
the external Territories.
5B
Application of the Criminal Code
Chapter 2 of the Criminal Code
applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Part II—Constitution, functions and powers of the Australian Federal
Police
Division 1—Constitution, functions and laws conferring powers on members
etc.
6
Constitution of the Australian Federal Police
The Australian Federal Police consists
of:
(a) the Commissioner of Police; and
(b) any Deputy Commissioner of Police;
and
(c) AFP employees; and
(d) special members; and
(e) special protective service
officers.
8
Functions
(1) The functions of the Australian Federal
Police are:
(a) subject to subsection (1A),
the provision of police services in relation to the Australian Capital
Territory; and
(aa) the provision of police services
in relation to the Jervis Bay Territory; and
(b) the provision of police services
in relation to:
(i) laws of the
Commonwealth;
(ii) property of the
Commonwealth (including Commonwealth places) and property of authorities of the
Commonwealth; and
(iii) the safeguarding of
Commonwealth interests; and
(baa) the investigation of State offences
that have a federal aspect; and
(ba) the provision of services in
accordance with arrangements entered into under subsection (1C) and doing
anything else included in the arrangements that is incidental or conducive to
the provision of the services; and
(bb) to perform the functions conferred
by the Witness Protection Act 1994; and
(bc) to perform the functions conferred
by a law of a State or Territory that is a complementary witness protection law
for the purposes of the Witness Protection Act 1994; and
(bd) to perform functions under the Proceeds
of Crime Act 2002; and
(be) to perform such protective and
custodial functions as the Minister directs by notice in writing in the Gazette,
being functions that relate to a person, matter or thing with respect to which
the Parliament has legislative power; and
(bf) the provision of police services
and police support services for the purposes of assisting, or cooperating with,
an Australian or foreign:
(i) law enforcement
agency; or
(ii) intelligence or
security agency; or
(iii) government regulatory
agency; and
(bg) the provision of police services
and police support services in relation to establishing, developing and
monitoring peace, stability and security in foreign countries; and
(c) to do anything incidental or
conducive to the performance of the foregoing functions.
Note: For State offences that have a federal aspect,
see section 4AA.
(1A) The Minister and the Australian Capital
Territory may enter into arrangements for the provision of the police services
in relation to the Australian Capital Territory that are in respect of
Territory functions as defined by section 3 of the A.C.T. Self‑Government
(Consequential Provisions) Act 1988, and, where the arrangements have been
entered into, the provision of those services shall be in accordance with the
arrangements.
(1B) The Minister shall try to enter into the
first such arrangement before 1 July 1990.
(1C) The Minister and the Administrator of an External
Territory may enter into arrangements for the provision of police services and
regulatory services in relation to that Territory, and, where the arrangements
have been entered into, the provision of those services shall be in accordance
with the arrangements.
(2) The provision of police services in
relation to a Commonwealth place in a State, being services by way of the
investigation of offences against the laws of that State having application in
relation to that place by virtue of the Commonwealth Places (Application of
Laws) Act 1970, shall be in accordance with arrangements made between the
Commissioner and the Commissioner of Police (however designated) of that State.
(2B) Arrangements for the provision of services
under subsection (1A) or (1C) may include arrangements for the doing of
anything incidental or conducive to the provision of the services.
(3) In this section:
Commonwealth place has the same meaning as in
the Commonwealth Places (Application of Laws) Act 1970.
8A
Minister may direct which functions are protective service functions
The Minister may, by notice published in
the Gazette, direct that certain protective and custodial functions of
the Australian Federal Police are protective service functions.
9 Laws
conferring powers on members
(1) In
addition to any other powers and duties, a member has:
(a) the powers and duties that are
conferred or imposed by or under a law of the Commonwealth on:
(i) a constable; or
(ii) a constable of a
particular rank, if a declaration under subsection (2A) is in force that
the member is of that rank for the purposes of this subparagraph; and
(b) when performing functions in the Australian
Capital Territory—the powers and duties conferred or imposed on a constable
or on an officer of police by or under any law (including the common law) of
the Territory; and
(ba) when performing functions in the Jervis
Bay Territory—the powers and duties conferred or imposed on a constable or an
officer of police by or under any law (including the common law) of the
Territory; and
(bb) when performing functions in an External
Territory—the powers and duties conferred or imposed on a constable or an
officer of police by or under any law (including the common law) of the
Territory; and
(bc) when performing functions in the Northern
Territory:
(i) the powers and duties
conferred or imposed on a constable or an officer of police by or under any law
(including the common law) of the Territory; and
(ii) any powers and duties
conferred on the member by virtue of his or her appointment as a Special
Constable of the Police Force of the Northern Territory by or under a law of
the Territory; and
(c) in relation to the following:
(i) the laws of the
Commonwealth;
(ii) matters in connection
with property of the Commonwealth or of an authority of the Commonwealth;
(iii) matters arising on or
in connection with land or premises owned or occupied by the Commonwealth or an
authority of the Commonwealth;
(iv) the safeguarding of
Commonwealth interests;
(iva) the investigation of
State offences that have a federal aspect;
the powers and duties that are
conferred or imposed, in the place in which the member is acting, on:
(v) a constable or an
officer of police; or
(vi) a constable, or an
officer of police, of a particular rank, if a declaration under subsection (2B)
is in force that the member is of that rank for the purposes of this
subparagraph.
(2) Where any provisions of a law of a State
apply in relation to offences against the laws of the Commonwealth or of a
Territory, those provisions so apply as if:
(a) any reference in those provisions
to a constable or to an officer of police included a reference to a member; and
(b) if a declaration is in force under
subsection (2B) that a member is of a particular rank for the purposes of
this paragraph—any reference in those provisions to an officer of police of
that rank included a reference to the member.
(2A) The Commissioner may, by writing, declare
that a member is of a particular rank for the purposes of subparagraph (1)(a)(ii).
(2B) The Commissioner may, by writing, declare
that a member is of a particular rank (the State law rank) for
the purposes of subparagraph (1)(c)(vi) or paragraph (2)(b) if:
(a) a declaration is in force under subsection (2A)
that the member is of a particular rank (the Commonwealth law rank);
and
(b) the Commissioner considers the
State law rank is equivalent to the Commonwealth law rank.
(2C) Unless it ceases to be in force sooner, a
declaration under subsection (2B) ceases to be in force when the
declaration under subsection (2A) ceases to be in force.
(3) In paragraph (1)(a):
constable includes a member of the Police
Force of a State or Territory.
11
State and Territory writs and warrants
Where a writ or warrant is issued under
the law of a State or Territory in relation to an offence or other matter under
a law of the Commonwealth or of a Territory, the writ or warrant may be
executed by a member, notwithstanding that it is not addressed to a member and
notwithstanding any requirement of the law of the State or Territory as to the
person by whom it may be executed.
12
Immunities from certain State and Territory laws
The Commissioner, a Deputy Commissioner
or an AFP employee is not required under, or by reason of, a law of a State or
Territory:
(a) to obtain or have a licence or
permission for doing any act or thing in the exercise of his or her powers or
the performance of his or her duties as the Commissioner, a Deputy Commissioner
or an AFP employee; or
(b) to register any vehicle, vessel,
animal or article belonging to the Commonwealth.
12A
Immunity from State and Territory laws in relation to entry etc. of police dogs
on premises etc.
(1) In this section:
AFP dog means a police dog or a protective
service dog that is used by the Australian Federal Police.
AFP dog handler means a member or a
protective service officer whose duties as a member or a protective service
officer include the duties of an AFP dog handler.
protective service dog means a dog used or
trained to assist protective service officers.
(2) Where an AFP dog handler is entitled to
enter, or to be on or in, particular premises or a particular place in the
performance of the AFP dog handler’s duties as a member or a protective service
officer, the AFP dog handler is entitled, in entering, or being on or in, the
premises or place, to be accompanied by an AFP dog under the control of the AFP
dog handler.
(3) The Commonwealth, a member or a
protective service officer is not subject to any penalty, liability or
forfeiture by reason only of an AFP dog having entered, or having been on or
in, particular premises or a particular place if:
(a) the AFP dog is under the control
of an AFP dog handler;
(b) the AFP dog handler is performing
the AFP dog handler’s duties as a member or protective service officer; and
(c) the AFP dog handler is entitled to
enter, or to be on or in, the premises or place.
(4) In any
proceeding, a certificate in writing signed by the Commissioner certifying
that:
(a) a specified member or specified
protective service officer is, or was at a specified time, an AFP dog handler
within the meaning of this section; or
(b) a specified dog is, or was at a
specified time, an AFP dog within the meaning of this section;
is prima facie evidence of the fact or facts
certified.
Division 3—Powers and duties of protective service officers
14A
Powers of arrest
A protective service officer may,
without warrant, arrest a person for a protective service offence if the
protective service officer believes on reasonable grounds that:
(a) the person has just committed, or
is committing, the offence; and
(b) the arrest of the person is
necessary for the purpose of:
(i) ensuring the
appearance of the person before a court of competent jurisdiction for the
offence; or
(ii) preventing the
continuation of, or a repetition of, the offence or the commission of a further
protective service offence; or
(iii) preventing the
concealment, loss or destruction of evidence of, or relating to, the offence;
or
(iv) preserving the safety
or welfare of the person; and
(c) proceedings by way of summons
against the person for the offence would not achieve such a purpose.
14B
Use of force in making arrest etc.
(1) A protective service officer must not, in
arresting or attempting to arrest a person for an offence or in preventing a
person who has been arrested for an offence from escaping, use more force, or
subject the person to greater indignity, than is reasonable and necessary in
order to make the arrest or prevent the escape of the person.
(2) Without limiting the generality of subsection (1),
a protective service officer must not, in arresting or attempting to arrest a
person for an offence or in preventing a person who has been arrested for an
offence from escaping, do an act likely to cause death or grievous bodily harm
to the person unless the officer believes on reasonable grounds that the doing
of the act is necessary to protect life or prevent serious injury to the officer
or any other person.
14C
Arrested person to be informed of grounds of arrest
(1) A protective service officer who arrests
a person for an offence must inform the person, at the time of the arrest, of
the offence for which the person is arrested.
(2) It is sufficient compliance with subsection (1)
if the protective service officer informs the person of the substance of the
offence, and it is not necessary to do so in language of a precise or technical
nature.
(3) Subsection (1) does not apply to the
arrest by a protective service officer of a person for an offence if the
person, by his or her own actions, makes it impracticable for the protective
service officer to inform the person of the offence.
(4) Where a protective service officer who
arrests a person for an offence believes or has reasonable grounds for
believing that the person is unable, by reason of inadequate knowledge of the
English language or any physical or mental disability, to understand the
substance of the offence for which the person is arrested, the protective
service officer must, as soon as practicable, take all reasonable steps to
ensure that the person is provided with an explanation of the substance of the
offence that the person is able to understand.
14D
Search of arrested person
(1) A protective service officer may, upon
lawfully arresting a person for an offence:
(a) conduct an ordinary search or a
frisk search of the person; and
(b) search the clothing that the
person is wearing and any vessel, vehicle or other property under the person’s
immediate control if the officer believes on reasonable grounds that it is
necessary to do so;
for the purpose of:
(c) ascertaining whether there is
concealed on the person, in the clothing or in the property, a weapon or other
thing capable of being used to inflict bodily injury or to assist the person to
escape from custody; or
(d) preventing the concealment, loss
or destruction of evidence of, or relating to, the offence.
(2) If the protective service officer is not
of the same sex as the arrested person, an ordinary search or a frisk search of
the arrested person for the purposes of subsection (1) may be conducted
by:
(a) if a protective service officer, a
member or a special member of the same sex as the arrested person is reasonably
available to conduct the search—that protective service officer, member or
special member; or
(b) if paragraph (a) does not
apply but a police officer or an officer of Customs (within the meaning of
subsection 4(1) of the Customs Act 1901) who is of the same sex as the
arrested person is reasonably available to conduct the search—that police
officer or officer of Customs; or
(c) otherwise—any other person who is
of the same sex as the arrested person and who is requested by the protective
service officer to conduct the search.
(3) An action or proceeding, whether civil or
criminal, does not lie against a person who, at the request of a protective
service officer, conducts a search under this section if the person acts in
good faith and does not contravene subsection (4).
(4) A protective service officer or other
person who conducts a search under this section must not use more force, or
subject an arrested person to greater indignity, than is reasonable and
necessary in order to conduct the search.
(5) A protective service officer or other
person who lawfully conducts a search under this section may seize:
(a) any weapon or thing mentioned in paragraph (1)(a);
or
(b) anything that the officer or other
person has reasonable grounds to believe is a thing:
(i) with respect to which
an offence has been committed; or
(ii) that will afford
evidence of the commission of an offence; or
(iii) that was used, or
intended to be used, for the purpose of committing an offence.
14E
How arrested person to be dealt with
(1) A protective service officer who arrests
a person for an offence must ensure that the person is delivered into the
custody of a police officer as soon as practicable to be dealt with according
to law.
(2) Where a weapon or other thing has been
seized from the person under subsection 14D(5), the protective service officer
must ensure that the weapon or other thing is delivered to the police officer
into whose custody the person is delivered.
(3) In this section:
police officer means:
(a) a member or special member; or
(b) a member, however described, of a
police force of a State or Territory; or
(c) a member, however described, of a
police force of a foreign country.
14F
Release of arrested person
Where:
(a) a person has been arrested by a
protective service officer for an offence; and
(b) the person is in the custody of
the protective service officer or another protective service officer; and
(c) the protective service officer who
has the custody of the person:
(i) ceases to have reasonable
grounds for believing that the person committed, or was committing, an offence;
or
(ii) ceases to have
reasonable grounds for believing that the holding of the person in custody is
necessary in order to achieve a purpose mentioned in paragraph 14A(b), and does
not have reasonable grounds for believing that the holding of the person in
custody is necessary in order to achieve any other purpose mentioned in that
paragraph; or
(iii) ceases
to have reasonable grounds for believing that proceedings by way of summons
against the person for the offence would not achieve a purpose mentioned in
paragraph 14A(b), and does not have reasonable grounds for believing that
proceedings by way of summons against the person for the offence would not
achieve any other purpose mentioned in that paragraph;
the protective service officer must release the person
from custody in respect of the offence as soon as practicable.
14G
Relationship of Division to other laws
(1) The power of arrest conferred by section 14A
on protective service officers is in addition to, and not in derogation of,
powers of arrest available to protective service officers under any other law
of the Commonwealth or the law of a State or Territory.
(2) Subject to subsection (3), where a
protective service officer, in the course of his or her duties as a protective
service officer, arrests a person for any offence (whether the arrest is made
under section 14A, under any other law of the Commonwealth or under the
law of a State or Territory), sections 14B to 14F apply in relation to the
arrest despite any other law of the Commonwealth or the law of a State or
Territory.
(3) Subsection (2) has effect subject to
sections 252 and 253 of the Migration Act 1958.
(4) Subject to subsection (2), the
powers conferred, and duties imposed, by this Division on protective service
officers are in addition to, and not in derogation of, any other powers
conferred, or duties imposed, by any other law of the Commonwealth or the law
of a State or Territory, and this Division is not intended to exclude or limit
the operation of any other law of the Commonwealth or the law of a State or
Territory providing for such powers or duties in so far as it is capable of
operating concurrently with this Division.
(5) This Division, in so far as it protects
the individual, is in addition to, and not in derogation of, any rights and
freedoms of the individual, whether under the law of the Commonwealth or of a
State or Territory, and this Division is not intended to exclude or limit the
operation of any law of the Commonwealth or of a State or Territory providing
for those rights and freedoms in so far as it is capable of operating
concurrently with this Division.
Division 4—Powers and duties of members, special members and protective
service officers relating to protective service functions
14H
Definitions
In this Division:
designated person means:
(a) a member or special member; or
(b) a protective service officer.
police officer means:
(a) a member or special member; or
(b) a member, however described, of a
police force of a State or Territory; or
(c) a member, however described, of a
police force of a foreign country.
vehicle includes any means of transport (and,
without limitation, includes a vessel and an aircraft).
14I Requirement
to provide name etc.
(1) If:
(a) a designated person suspects on
reasonable grounds that a person (the suspect) might have just
committed, might be committing, or might be about to commit, a protective
service offence; and
(b) the suspect is in a place, or in
the vicinity of a place, person or thing, in respect of which the Australian
Federal Police is performing protective service functions;
the designated person may request the suspect to provide
to the designated person:
(c) the suspect’s name; and
(d) the suspect’s residential address;
and
(e) the suspect’s reason for being in
the place, or in the vicinity of the place, person or thing, in respect of
which the Australian Federal Police is performing protective service functions;
and
(f) evidence of the suspect’s
identity.
(2) If a designated person:
(a) makes a request under subsection (1);
and
(b) informs the suspect of the
designated person’s authority to make the request; and
(c) informs the suspect that it may be
an offence not to comply with the request;
the suspect must not:
(d) fail to comply with the request;
or
(e) give a name or address that is
false in a material particular.
Penalty: 20 penalty units.
Note: A more serious offence of obstructing a
Commonwealth public official may also apply (see section 149.1 of the Criminal
Code).
(3) Subsection (2) does not apply if the
suspect has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
14J
Stopping and searching
When this section applies
(1) This section applies if a designated
person suspects on reasonable grounds that:
(a) a person (the suspect):
(i) has a thing under the
suspect’s immediate control; or
(ii) is occupying a thing;
or
(iii) has a thing in a
vehicle operated or occupied by the suspect; or
(iv) has brought a thing
onto premises at which the Australian Federal Police is performing protective
service functions; and
(b) the thing is likely to cause, or is
likely to be used by the suspect or another to cause:
(i) substantial damage to
a place or a thing in respect of which the Australian Federal Police is
performing protective service functions; or
(ii) death or serious harm
to a person in respect of whom the Australian Federal Police is performing
protective service functions;
in circumstances that would be
likely to involve the commission of a protective service offence.
Designated person may stop and search suspect
(2) The designated person may:
(a) stop and detain the suspect for
the purpose of searching for the thing; and
(b) do any or all of the following for
the purpose of searching for the thing:
(i) if the designated
person is of the same sex as the suspect—conduct an ordinary search or a frisk
search of the suspect;
(ii) search any thing under
the suspect’s immediate control;
(iii) search any vehicle
operated or occupied by the suspect.
Conditions relating to conduct of search of suspect
(3) If the designated person is not of the
same sex as the suspect, an ordinary search or a frisk search of the suspect
for the purpose of searching for the thing may be conducted by:
(a) if another designated person of
the same sex as the suspect is reasonably available to conduct the search—that
designated person; or
(b) if paragraph (a) does not
apply but a police officer or an officer of Customs (within the meaning of
subsection 4(1) of the Customs Act 1901) who is of the same sex as the
suspect is reasonably available to conduct the search—that police officer or
officer of Customs; or
(c) otherwise—any other person:
(i) who is of the same sex
as the suspect; and
(ii) who is requested by
the designated person to conduct the search; and
(iii) who consents to
conduct the search.
(4) If a designated person requests an
officer of Customs or another person to conduct a search of a suspect, the
designated person must explain to the officer of Customs or the other person:
(a) if the search requested is an
ordinary search—the meaning of an ordinary search; and
(b) if the search requested is a frisk
search—the meaning of a frisk search; and
(c) that the officer of Customs or the
other person must not use more force, or subject a suspect to greater
indignity, than is reasonable and necessary in order to conduct the search.
(5) An action or proceeding, whether civil or
criminal, does not lie against a person who conducts a search under paragraph (3)(b)
or (c) if the person acts in good faith and does not contravene subsection (6).
(6) A designated person or other person who
conducts a search of a suspect under this section must not use more force, or
subject a suspect to greater indignity, than is reasonable and necessary in
order to conduct the search.
(7) A suspect must not be detained under this
section for longer than is reasonably necessary for a search to be conducted
under this section.
Designated person may search a thing
(8) If subparagraph (1)(a)(iv) applies,
the designated person may, for the purpose of searching for the thing mentioned
in that subparagraph, search a thing that the designated person suspects on
reasonable grounds was brought by the suspect onto premises at which the
Australian Federal Police is performing protective service functions.
Other conditions relating to conduct of search of
suspect or thing
(9) In searching a thing under subsection (2)
or (8), the designated person may use such force as is reasonable and necessary
in the circumstances, but must not damage the thing by forcing it, or a part of
it, open unless:
(a) if the search is under subsection (2)—the
suspect has been given a reasonable opportunity to open the thing or part of
it; or
(b) if the search is under subsection (8)—the
person (if any) apparently in charge of the thing has been given a reasonable
opportunity to open the thing or part of it; or
(c) it is not possible to give that
opportunity.
14K
Seizure of things found
Designated person may seize a thing being searched for
(1) If, as a result of conducting a search
under section 14J, a designated person, or a person who conducted the
search under subsection 14J(3) on behalf of a designated person, finds the
thing for which the designated person or person was searching, the designated
person may seize the thing.
Designated person may seize a dangerous thing
(2) If, as a result of conducting a search
under section 14J, a designated person, or a person who conducted the
search under subsection 14J(3) on behalf of a designated person, finds a
weapon, or other thing, that the designated person suspects on reasonable
grounds is likely to be used by the suspect or another to cause death or
serious harm to a person:
(a) in respect of whom the Australian
Federal Police is performing protective service functions; or
(b) who is in a place, or in the
vicinity of a person, place or thing, in respect of which the Australian
Federal Police is performing protective service functions;
the designated person may seize the weapon or thing.
Protective service officer must deliver thing seized to
police officer
(3) If the designated person is a protective
service officer, the designated person must ensure that the thing is delivered
into the custody of a police officer as soon as practicable.
14L
How seized things must be dealt with
Seizure notice to be served
(1) A police officer who is for the time
being responsible for a thing seized under section 14K must, within 7 days
after the seizure day, serve a seizure notice on:
(a) the owner of the thing; or
(b) if the owner of the thing cannot
be identified after reasonable inquiries—the person from whom the thing was
seized.
(2) Subsection (1) does not apply if:
(a) both:
(i) the owner of the thing
cannot be identified after reasonable inquiries; and
(ii) the thing was not
seized from a person; or
(b) it is not possible to serve the
person required to be served under subsection (1).
(3) A seizure notice must:
(a) identify the thing; and
(b) state the date on which the thing
was seized; and
(c) state the ground or grounds on
which the thing was seized; and
(d) state that, if the owner does not
request the return of the thing within 90 days after the date of the notice,
the thing is forfeited to the Commonwealth.
Return of thing seized
(4) The owner of a thing seized under section 14K
may request the return of the thing.
(5) A police officer who is for the time
being responsible for a thing seized under section 14K must return the
thing to its owner if:
(a) the owner requests the return of
the thing; and
(b) in the case of a thing seized
under subsection 14K(1)—the police officer does not suspect on reasonable
grounds that, if the thing is returned to the owner, the thing is likely to
cause, or is likely to be used by the owner or another to cause:
(i) substantial damage to
a place or thing in respect of which the Australian Federal Police is
performing protective service functions; or
(ii) death or serious harm
to a person in respect of whom the Australian Federal Police is performing
protective service functions;
in circumstances that would be
likely to involve the commission of a protective service offence; and
(c) in the case of a thing seized
under subsection 14K(2)—the police officer does not suspect on reasonable
grounds that, if the thing is returned to the owner, the thing is likely to be
used by the owner or another to cause death or serious harm to a person:
(i) in respect of whom the
Australian Federal Police is performing protective service functions; or
(ii) who is in a place, or
in the vicinity of a person, place or thing, in respect of which the Australian
Federal Police is performing protective service functions.
Forfeiture of thing seized
(6) A thing is forfeited to the Commonwealth
if the owner of the thing does not request its return:
(a) before the end of the 90th day
after the date of the seizure notice in relation to the thing; or
(b) if subsection (2) applied in
relation to the thing so that a seizure notice was not served—before the end of
the 90th day after the seizure day.
Application to magistrate
(7) If:
(a) the owner of a thing requests the
return of the thing:
(i) within 90 days after
the date of the seizure notice in relation to the thing; or
(ii) if subsection (2)
applied in relation to the thing so that a seizure notice was not served—within
90 days after the seizure day; and
(b) the thing has not been returned to
the owner by the end of the 90th day;
the police officer who is for the time being responsible
for the thing must, before the end of the 95th day:
(c) return the thing to the owner; or
(d) apply to a magistrate for an order
under section 14M.
Seizure day
(8) In this section:
seizure day means:
(a) in relation to a thing seized by a
designated person who is a protective service officer—the day on which the
thing was delivered into the custody of a police officer under subsection
14K(3); or
(b) in relation to a thing seized by a
designated person who is a member or a special member—the day on which the
thing was seized.
14M
Application to magistrate
(1) If subsection 14L(7) applies, the police
officer may apply to a magistrate for an order in relation to the thing to
which that subsection applies.
(2) The magistrate must, in determining an
application by a police officer under subsection (1), allow the owner of
the thing to appear and be heard.
(3) If the magistrate is satisfied that:
(a) in the case of a thing seized
under subsection 14K(1)—there are reasonable grounds to suspect that, if the
thing is returned to the owner, the thing is likely to cause, or is likely to
be used by the owner or another to cause:
(i) substantial damage to
a place or thing in respect of which the Australian Federal Police is
performing protective service functions; or
(ii) death or serious harm
to a person in respect of whom the Australian Federal Police is performing
protective service functions;
in circumstances that would be
likely to involve the commission of a protective service offence; or
(b) in the case of a thing seized
under subsection 14K(2)—there are reasonable grounds to suspect that, if the
thing is returned to the owner, the thing is likely to be used by the owner or
another to cause death or serious harm to a person:
(i) in respect of whom the
Australian Federal Police is performing protective service functions; or
(ii) who is in a place, or
in the vicinity of a person, place or thing, in respect of which the Australian
Federal Police is performing protective service functions;
the magistrate may make any of the following orders:
(c) that the thing be retained by the
police officer for the period specified in the order;
(d) that the thing is forfeited to the
Commonwealth;
(e) that the thing is to be sold and
the proceeds given to the owner;
(f) that the thing is to be otherwise
sold or disposed of.
(4) If the magistrate is not satisfied as
mentioned in subsection (3), the magistrate must order that the thing be
returned to the owner.
14N
Relationship of Division to other laws
The powers conferred, and duties
imposed, by this Division on protective service officers, members and special
members are in addition to, and not in derogation of, any other powers
conferred, or duties imposed, by any other law of the Commonwealth or the law
of a State or Territory, and this Division is not intended to exclude or limit
the operation of any other law of the Commonwealth or the law of a State or
Territory in so far as it is capable of operating concurrently with this
Division.
Part III—Commissioner, Deputy Commissioners and AFP employees etc.
Division 1—Commissioner and Deputy Commissioners
17
Commissioner and Deputy Commissioners
(1) The Commissioner of Police and one or
more Deputy Commissioners of Police shall be appointed by the Governor‑General
by Commission.
(2) Subject to this Part, the Commissioner
holds office for such period, not exceeding 7 years, as is specified in his or
her instrument of appointment, but is eligible for re‑appointment.
(3) Subject to this Part, a Deputy
Commissioner holds office for the period, not exceeding 5 years, specified in
the instrument of appointment, but is eligible for re‑appointment.
(3A) Where a person is re‑appointed under
this section for a term beginning immediately after the end of the person’s
last appointment, the person’s service is to be taken to be continuous.
(4) The Commissioner holds office on such
terms and conditions (if any) in respect of matters not provided for by this
Act as are determined by the Governor‑General.
(4A) A Deputy Commissioner holds office on such
terms and conditions (if any) in respect of matters not provided for by this
Act as are determined by the Commissioner.
18
Acting Commissioner and Deputy Commissioner during vacancy
(1) At any time when the office of
Commissioner or an office of Deputy Commissioner is or is expected to be vacant
(whether or not the office has previously been filled), the Minister may
appoint a person to act as Commissioner or as a Deputy Commissioner, as the
case may be, until the filling of the vacancy, but a person so appointed shall
not continue so to act for more than 12 months.
(2) While a person is acting as Commissioner
or as a Deputy Commissioner under subsection (1), he or she has, and may
exercise, all the powers (except a power to make a declaration under subsection
40D(4)), and shall perform all the functions and duties, of the Commissioner or
of the Deputy Commissioner, as the case may be.
(3) The Minister may:
(a) determine the terms and conditions
of appointment, including remuneration and allowances, of a person appointed
under this section; and
(b) at any time terminate such an
appointment.
(4) The appointment of a person under this
section ceases to have effect if he or she resigns the appointment by writing
signed by him or her and delivered to the Minister.
(5) The validity of anything done by a person
purporting to act in accordance with this section shall not be called in
question by reason of any defect or irregularity in or in connection with his
or her appointment or on the ground that the occasion for his or her so acting
had not arisen or had ceased.
19
Absence etc. of Commissioner or Deputy Commissioner
(1) At any time when the Commissioner or a
Deputy Commissioner is absent from duty or from Australia or is, for any other
reason, unable to perform the functions of the Commissioner or a Deputy
Commissioner, as the case may be, the next most senior member who is available
has, and may exercise, all the powers (except a power to make a declaration
under subsection 40D(4)), and shall perform all the functions and duties, of
the Commissioner or the Deputy Commissioner, as the case may be.
(1A) The Minister may determine the remuneration
and allowances of a person who exercises the powers, and performs the functions
and duties, of the Commissioner under subsection (1).
(1B) The Commissioner may determine the
remuneration and allowances of a person who exercises the powers, and performs
the functions and duties, of a Deputy Commissioner under subsection (1).
(1C) A person is not entitled to be paid
remuneration or allowances under this section for exercising the powers, and
performing the functions and duties, of the Commissioner or a Deputy
Commissioner for less than one week.
(2) The exercise of the powers and the
performance of the functions and duties of the Commissioner or of a Deputy
Commissioner by a member under this section does not affect the exercise of any
power or the performance of any function or duty by the Commissioner or by the
Deputy Commissioner, as the case may be.
(3) The validity of anything done by a person
purporting to act in accordance with this section shall not be called in
question on the ground that the occasion for his or her so acting had not
arisen or had ceased.
(4) For the purposes of subsection (1),
the order of seniority of members is as determined by the Commissioner.
(5) In this section, except so far as the
contrary intention appears, a reference to the Commissioner or to a Deputy
Commissioner shall be read as including a reference to an acting Commissioner
or acting Deputy Commissioner, as the case may be, appointed under section 18.
20
Remuneration and allowances
(1) The Commissioner shall be paid such
remuneration as is determined by the Remuneration Tribunal, but if no
determination of that remuneration is in operation, he or she shall be paid
such remuneration as is prescribed.
(2) The Commissioner shall be paid such
allowances as are prescribed.
(2A) A Deputy Commissioner is to be paid such
remuneration and allowances as the Commissioner determines in writing.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
21
Leave of absence
(1) The Commissioner has such recreation
leave entitlements as are determined by the Remuneration Tribunal.
(1A) The Minister may grant the Commissioner
leave of absence, other than recreation leave, on such terms and conditions as
to remuneration or otherwise as the Minister determines.
(2) The Commissioner may grant leave of
absence to a Deputy Commissioner on such terms and conditions as to
remuneration or otherwise as the Commissioner determines.
22
Termination of appointment
(1) The Governor‑General may terminate
the appointment of the Commissioner or a Deputy Commissioner by reason of
misbehaviour or physical or mental incapacity.
(2) If the Commissioner or a Deputy
Commissioner:
(a) engages in paid employment outside
the duties of his or her office without the approval of the Minister;
(b) is absent from duty, except on
leave of absence under section 21, for 14 consecutive days, or for 28 days
in any 12 months; or
(c) becomes
bankrupt or applies to take the benefit of any law for the relief of bankrupt
or insolvent debtors, compounds with his or her creditors or makes an
assignment of his or her remuneration for their benefit;
the Governor‑General shall terminate his or her
appointment.
Division 2—AFP employees
Subdivision A—Engagement of AFP employees etc.
23
Employer powers etc. of Commissioner
(1) The Commissioner, on behalf of the
Commonwealth, has all the rights, duties and powers of an employer in respect
of AFP employees.
(2) Without limiting subsection (1), the
Commissioner has, in respect of AFP employees, the rights, duties and powers
that are prescribed by the regulations.
24
Engagement of AFP employees
(1) The Commissioner, on behalf of the
Commonwealth, may, by writing, engage persons as employees.
Engagement may be made subject to conditions
(2) The engagement of an AFP employee may be
made subject to conditions notified to the employee, including conditions
dealing with any of the following matters:
(a) probation;
(b) citizenship;
(c) formal qualifications;
(d) security and character clearances;
(e) health clearances;
(f) secrecy requirements.
(3) Subsection (2) does not, by
implication, limit the conditions that may be applied to the engagement of an
AFP employee.
Non‑Australian citizen
(4) The Commissioner must not engage, as an
AFP employee, a person who is not an Australian citizen, unless the
Commissioner considers it appropriate to do so.
This section has no application to overseas engagement
(5) This section does not apply to the
engagement of persons overseas to perform duties overseas as employees.
Note: Section 69A deals with the engagement of
such persons.
25
Senior executive AFP employees
The Commissioner may, by writing,
declare an AFP employee to be a senior executive AFP employee.
26
Continuous employment
For the purposes of the Long Service
Leave (Commonwealth Employees) Act 1976 and any other law of the
Commonwealth, if:
(a) a person is engaged as an AFP
employee under section 24 for a period; and
(b) the person completes that period of
engagement (the initial period); and
(c) the person is re‑engaged
under that section for a further period starting immediately after the end of
the initial period;
the person’s employment is taken to be continuous from the
beginning of the initial period until the end of the re‑engagement.
Subdivision B—Remuneration and other terms and conditions
27 Remuneration
and other conditions
(1) The Commissioner may from time to time
determine in writing the remuneration and other terms and conditions of employment
applying to an AFP employee, other than:
(a) terms and conditions of employment
that the Commissioner may determine under subsection 40H(2); or
(b) accommodation arrangements that
are to apply to an AFP employee, and allowances an AFP employee is to be paid,
while the employee is performing duties of the kind covered by paragraph
40H(3)(b).
Application etc. of industrial instrument
(2) A determination under subsection (1)
may apply, adopt or incorporate, with or without modification, any of the provisions
of an industrial instrument, as in force at a particular time or as in force
from time to time.
Industrial instrument prevails over a determination
under subsection (1)
(3) An industrial instrument overrides any
determination under subsection (1), to the extent of any inconsistency.
Interpretation
(4) In this section:
industrial instrument means any of the
following instruments within the meaning given by the Workplace Relations
Act 1996:
(a) a workplace agreement;
(b) an award or a variation or order
affecting an award;
(c) a transitional award or a
variation or order affecting a transitional award;
(d) a pre‑reform AWA;
(e) a pre‑reform certified
agreement.
Note: A determination under section (1) must not
provide less than the minimum entitlements of employment under the Australian
Fair Pay and Conditions Standard, within the meaning given by the Workplace
Relations Act 1996.
Subdivision C—Termination of employment
28
Termination of employment by Commissioner
The Commissioner may at any time, by
notice in writing, terminate the employment of an AFP employee.
Note: The Workplace Relations Act 1996 has
rules that apply to termination of employment.
Subdivision D—Resignation and retirement
30
Resignation
(1) An AFP employee may resign from the
Australian Federal Police if, and only if:
(a) he or she gives written notice to
the Commissioner of his or her resignation and the notice specifies, in
accordance with subsection (2), the day his or her resignation is to take
effect; or
(b) his or her resignation is in
accordance with regulations under paragraph 70(g) (about resigning for the
purpose of becoming a candidate at certain elections).
Limitation
(2) The day specified in a notice under paragraph (1)(a)
must not:
(a) be earlier than 14 days, or such
shorter period as the Commissioner allows; or
(b) be later than 4 months;
after the day on which the notice is given to the
Commissioner.
(3) Paragraph (1)(a) is subject to
section 30A.
30A
Resignation in anticipation of termination of employment
(1) This section applies if:
(a) an AFP employee gives the
Commissioner written notice of his or her resignation under paragraph 30(1)(a);
and
(b) the employee’s conduct:
(i) has been, or is being,
investigated as an AFP conduct issue that is a category 3 conduct issue; or
(ii) has raised a
corruption issue that has been investigated; or
(iii) raises a corruption
issue that is being investigated; and
(c) at least one of the following
applies:
(i) if the investigation
has been completed—the Commissioner is considering terminating the employee’s
employment under section 28 on the basis of the findings of the
investigation;
(ii) if the investigation
has not been completed—the Commissioner is not in a position to decide whether
to terminate the employee’s employment under section 28 because the
findings of the investigation are not yet known;
(iii) the Commissioner is
satisfied that the employee’s conduct may amount to serious misconduct within
the meaning of subsection 40K(3).
(2) The Commissioner may, by written notice
to the AFP employee, substitute a day, no later than 90 days after the day
specified in the employee’s notice of resignation, as the day on which his or
her resignation is to take effect.
(3) The Commissioner may give more than one
notice under subsection (2) to the AFP employee in relation to the notice
of resignation.
(4) To be effective, the first notice given
under subsection (2) in relation to the notice of resignation must be
given to the employee before the day specified in the notice of resignation.
(5) To be effective, any subsequent notice
given under subsection (2) in relation to the notice of resignation must
be given to the employee before the day specified in the immediately preceding
notice given under that subsection in relation to the notice of resignation.
(6) On or before the day specified in the
most recent notice given under subsection (2) in relation to the notice of
resignation, the Commissioner must:
(a) accept the AFP employee’s notice
of resignation; or
(b) terminate the AFP employee’s
employment under section 28.
(7) If the Commissioner accepts the notice of
resignation under paragraph (6)(a), the AFP employee’s resignation takes
effect on the day on which the Commissioner communicates acceptance of the
resignation to the employee.
31
Retirement upon reaching minimum retiring age
(1) An AFP employee who has reached the
minimum retiring age is entitled to retire at any time by notice in writing to
the Commissioner.
Minimum retiring age
(2) For the purposes of this section, the minimum
retiring age is 55 years, or such higher or lower age as is prescribed
by the regulations.
32
Retirement on invalidity grounds
Retirement of AFP employee by Commissioner
(1) If the Commissioner is satisfied that an
AFP employee should be retired because of physical or mental incapacity, the
Commissioner may retire the employee by notice in writing given to the
employee.
AFP employee consents to retirement
(2) Before the Commissioner retires an AFP
employee under subsection (1), the employee may, by notice in writing
given to the Commissioner, consent to the Commissioner retiring the employee
under that subsection.
Note: To find out when an AFP employee’s retirement
takes effect in such a case, see section 33.
AFP employee not re‑engaged because of invalidity
(3) If:
(a) a person is engaged as an AFP
employee under section 24 for a period; and
(b) the person completes that period
of engagement (the initial period); and
(c) the person is not re‑engaged
under that section for a further period starting immediately after the end of
the initial period; and
(d) the Commissioner certifies in
writing that the person’s physical or mental incapacity was the only reason why
the person was not so re‑engaged;
the person is taken, for the purposes of the Safety,
Rehabilitation and Compensation Act 1988 and the Superannuation Act, to
have been retired under this section on the day on which the initial period
ended.
AFP employee is an eligible employee under the
Superannuation Act 1976
(4) In spite of this section, an AFP employee
who:
(a) is an eligible employee for the
purposes of the Superannuation Act 1976; and
(b) has not reached his or her maximum
retiring age within the meaning of that Act;
is not capable of being retired on the ground of
invalidity within the meaning of Part IVA of that Act unless the
Commonwealth Superannuation Board of Trustees No. 2 has given a
certificate under section 54C of that Act.
AFP employee is a member of the superannuation scheme
under the Superannuation Act 1990
(5) In spite of this section, an AFP employee
who:
(a) is a member of the superannuation
scheme established by deed under the Superannuation Act 1990; and
(b) is
under 60 years of age;
is not capable of being
retired on the ground of invalidity within the meaning of that Act unless the
Commonwealth Superannuation Board of Trustees No. 1 has given a
certificate under section 13 of that Act.
33
Time when retirement on invalidity grounds takes effect
AFP employee consents to retirement
(1) If an AFP employee has consented to being
retired under subsection 32(1), the employee’s retirement takes effect on the
day specified in the notice under that subsection. The day specified must not
be before the day on which the notice is given to the employee.
AFP employee does not consent to retirement
(2) If an AFP employee who is retired under
subsection 32(1) has not consented to being retired under that subsection:
(a) the notice given to the employee
under that subsection must inform the employee that the employee is entitled to
apply, within the period, and in the manner, prescribed by the regulations, for
review of the Commissioner’s decision to retire the employee; and
(b) subject to the outcome of any such
review, the employee’s retirement takes effect on a day specified in the
notice.
(3) The day specified in the notice must not
be before the end of the period mentioned in paragraph (2)(a).
Regulations
(4) The regulations may make provision in
relation to the review of decisions of the Commissioner to retire AFP employees
under subsection 32(1), where the employees have not consented to being retired
under that subsection, including:
(a) the period within which, and the
manner in which, AFP employees may apply for review of such decisions; and
(b) the powers available to a person
or body conducting such a review; and
(c) if the regulations make provision
for a person or body conducting such a review to make recommendations to the
Commissioner—the Commissioner giving effect to such recommendations by
confirming or revoking such decisions.
(5) Despite
section 25D of the Acts Interpretation Act 1901, if regulations
under subsection (4) make provision for a person or body conducting a
review of decisions of a kind mentioned in that subsection to:
(a) give written reasons for any
decision the person or body makes in relation to such a review; and
(b) give a copy of those reasons to
the AFP employee concerned;
the regulations may also make provision in relation to:
(c) the exclusion from that copy of
any information of a medical or psychiatric nature that the person or body
thinks may be prejudicial to the employee’s physical or mental health or well‑being;
and
(d) the employee nominating a medical
practitioner to receive that information.
34 Voluntary
retirement for the purposes of the Superannuation Act
Resignation
(1) If:
(a) an AFP employee resigns from the
Australian Federal Police in accordance with section 30; and
(b) the resignation takes effect on or
after the day on which he or she reaches 55 but before he or she reaches 60;
he or she is taken, for the purposes of the Superannuation
Act, to have retired voluntarily.
Termination of employment
(2) If:
(a) an AFP employee’s employment is
terminated under section 28; and
(b) the
termination takes effect on or after the day on which he or she reaches 55 but
before he or she reaches 60;
he or she is taken, for the purposes of the Superannuation
Act, to have retired voluntarily.
Period of employment ends
(3) If:
(a) a person is engaged as an AFP
employee under section 24 for a period; and
(b) the person completes that period
of engagement (the initial period); and
(c) the person is not re‑engaged
under that section for a further period starting immediately after the end of
the initial period; and
(d) the initial period ends on or
after the day on which he or she reaches 55 but before he or she reaches 60;
he or she is taken, for the purposes of the Superannuation
Act, to have retired voluntarily.
Division 3—Consultants and independent contractors
35
Commissioner may engage consultants or independent contractors
(1) The Commissioner may, under written
agreements, engage persons as consultants, or independent contractors, to
perform services.
(2) The Commissioner may determine, in writing,
that a consultant, or independent contractor, specified in the determination is
to be an AFP appointee for the purposes of paragraph (f) of the definition
of AFP appointee in subsection 4(1).
(3) A determination under subsection (2)
is not a legislative instrument.
Division 4—Undertakings and oaths or affirmations
36
Undertakings and oaths or affirmations
Commissioner
(1) A person appointed as the Commissioner
must, before commencing to perform his or her duties, make and subscribe,
before a person authorised by the Minister, such oath or affirmation as is
prescribed by the regulations.
Deputy Commissioner
(2) A Deputy Commissioner appointed under
section 17 must, immediately after his or her appointment:
(a) enter into an undertaking, in accordance
with the form prescribed by the regulations, relating to the performance of his
or her duties; and
(b) make and subscribe, before the
Commissioner, such oath or affirmation as is prescribed by the regulations.
Members
(3) A person declared to be a member under
section 40B must, immediately after the declaration:
(a) enter into an undertaking, in
accordance with the form prescribed by the regulations, relating to the
performance of his or her duties; and
(b) make and subscribe, before the
Commissioner or a person authorised by the Commissioner, such oath or
affirmation as is prescribed by the regulations.
Special members
(4) A person appointed under section 40E
to assist in the performance of the functions of the Australian Federal Police
must, immediately after his or her appointment:
(a) enter into an undertaking, in
accordance with the form prescribed by the regulations, relating to the
performance of his or her duties; and
(b) make and subscribe, before the
Commissioner or a person authorised by the Commissioner, such oath or
affirmation as is prescribed by the regulations.
Protective service officers
(4A) A person declared to be a protective
service officer under section 40EA must, immediately after the
declaration:
(a) enter into an undertaking, in
accordance with the form prescribed by the regulations, relating to the
performance of his or her duties; and
(b) make and subscribe, before the
Commissioner or a person authorised by the Commissioner, such oath or
affirmation as is prescribed by the regulations.
Special protective service officers
(4B) A person appointed under section 40EC
to assist in performing the protective service functions of the Australian
Federal Police must, immediately after his or her appointment:
(a) enter into an undertaking, in
accordance with the form prescribed by the regulations, relating to the
performance of his or her duties; and
(b) make and subscribe, before the
Commissioner or a person authorised by the Commissioner, such oath or
affirmation as is prescribed by the regulations.
Interpretation
(5) For the purposes of subsections (1)
and (2), appoint does not include re‑appoint for a term
that begins immediately after the end of the term of the last previous
appointment.
Part IV—Commissioner’s command powers etc.
Division 1—Administration and control etc.
37
General administration and control
(1) Subject to this Act, the Commissioner has
the general administration of, and the control of the operations of, the
Australian Federal Police.
Ministerial directions
(2) The Minister may, after obtaining and
considering the advice of the Commissioner and of the Secretary, give written
directions to the Commissioner with respect to the general policy to be pursued
in relation to the performance of the functions of the Australian Federal
Police.
(3) In addition to his or her power to give
directions under subsection (2), the Minister may give written directions
(either specific or general) to the Commissioner in relation to the use of
common services in accordance with an arrangement made under subsection (5).
Commissioner must comply with directions
(4) The Commissioner must comply with all
directions given under this section.
Ministerial arrangements
(5) The Minister may, after obtaining and
considering the advice of the Commissioner and of the Secretary, make an
arrangement with the appropriate Minister of a State for the provision or
development of common services and for the use of such common services by the
Australian Federal Police and the Police Force of the State.
Reports
(6) The Commissioner must give to the
Minister such reports as the Minister requests relating to the administration
and the performance of the functions of the Australian Federal Police.
Definitions
(7) In this section:
common services includes services consisting
of, or provided by means of:
(a) computer systems; or
(b) forensic science laboratories; or
(c) research and planning systems; or
(d) training institutions; or
(e) anything of a like nature.
Secretary means the Secretary to the
Department.
38
Commissioner’s Orders
In the exercise of his or her powers
under section 37, the Commissioner may, by writing, issue orders with
respect to the general administration of, and the control of the operations of,
the Australian Federal Police.
39
Compliance with Commissioner’s Orders
An AFP appointee must comply with
Commissioner’s Orders.
40
Compliance with specific directions, instructions or orders
An AFP appointee must not:
(a) disobey; or
(b) fail to carry out;
a lawful direction, instruction or order, whether written
or oral, given to him or her by:
(c) the Commissioner; or
(d) the AFP appointee under whose
control, direction or supervision he or she performs his or her duties.
40A
Self‑incrimination
(1) If an AFP appointee is required under
section 39 or 40 to give information, answer a question or produce a
document, he or she is not excused from giving the information, answering the
question or producing the document on the ground that the information, the
answer to the question or the production of the document might tend to
incriminate him or her or make him or her liable to a penalty.
(2) However, any information or answer so
given or any document so produced is not admissible in evidence against the AFP
appointee in any proceedings.
(3) Subsection (2) does not apply to any
information or answer so given, or any document so produced, that is relevant
to conducting a test under section 40M or 40N (about testing for alcohol
or prohibited drugs)
Note: Section 40Q deals with the admissibility
of such information etc.
Division 2—Conferral of status of member and conferral of commissions
40B
AFP employees who are members of the Australian Federal Police
The Commissioner may, by writing,
declare an AFP employee (other than a protective service officer) to be a
member of the Australian Federal Police if the Commissioner is satisfied that
the employee meets the requirements specified in a determination under section 40C.
Note 1: A person who is currently a protective service
officer may be declared to be a member if the person ceases to be a protective
service officer.
Note 2: This section does not prevent a protective
service officer from being appointed as a special member.
40C
Determination of competency or qualification requirements
The Commissioner may, by written
determination, specify either or both of the following for the purposes of
section 40B:
(a) competency requirements;
(b) qualification requirements.
40D
Commissioned police officers
Commission by Governor‑General
(1) The Governor‑General may, by
commission, declare a member to be a commissioned police officer.
(2) Before the Governor‑General makes a
declaration under subsection (1), the Minister must have received a
recommendation from the Commissioner that the member be declared to be a
commissioned police officer.
(3) The Commissioner may make such a
recommendation only if he or she is satisfied that the member is, in accordance
with the regulations, competent and qualified to be a commissioned police
officer.
Commission by Commissioner or Deputy Commissioner
(4) If the
Governor‑General, in writing, authorises the Commissioner or a Deputy
Commissioner to make declarations of the kind mentioned in subsection (1),
the Commissioner or Deputy Commissioner may, by commission, declare a member to
be a commissioned police officer.
(5) The Commissioner or Deputy Commissioner
may make a declaration under subsection (4) only if he or she is satisfied
that the member is, in accordance with the regulations, competent and qualified
to be a commissioned police officer.
(6) The giving of an authorisation under subsection (4)
does not limit the Governor‑General’s power under subsection (1).
Division 3—Special members
40E
Special members
(1) The Commissioner may, on such terms and
conditions as he or she determines in writing, appoint a person as a special
member of the Australian Federal Police to assist in the performance of its
functions.
(2) A person appointed under subsection (1)
has, during the continuance of his or her appointment:
(a) any powers and duties that are
expressly conferred or imposed on special members under a provision of this Act
or of any other Act; and
(b) such of the powers and duties
conferred or imposed on members as are specified in his or her instrument of
appointment.
Division 3A—Conferral of status of protective service officer
40EA
AFP employees who are protective service officers
The Commissioner may, by writing,
declare an AFP employee (other than a member) to be a protective service
officer of the Australian Federal Police if the Commissioner is satisfied that
the employee meets the requirements specified in a determination under section 40EB.
Note 1: A person who is currently a member may be
declared to be a protective service officer if the person ceases to be a
member.
Note 2: This section does not prevent a member from
being appointed as a special protective service officer.
40EB
Determination of competency or qualification requirements
The Commissioner may, by written
determination, specify either or both of the following for the purposes of
section 40EA:
(a) competency requirements;
(b) qualification requirements.
Division 3B—Special protective service officers
40EC
Special protective service officers
The Commissioner may, on such terms and
conditions as the Commissioner determines in writing, appoint a person as a
special protective service officer of the Australian Federal Police to assist
in performing the protective service functions of the Australian Federal
Police.
40ED
Powers and duties of special protective service officers
A special protective service officer
has:
(a) any powers and duties that are
expressly conferred or imposed on special protective service officers under a
provision of this Act or any other Act; and
(b) such of the powers and duties
conferred or imposed on protective service officers as are specified in his or
her instrument of appointment.
Division 4—Secondment
40F
Secondment of AFP employees to other police forces etc.
(1) The Commissioner may arrange for an AFP
employee to be seconded for a specified period to:
(a) the Police Force of a State or
Territory or of a foreign country; or
(b) the Australian Public Service; or
(c) any other body or organisation
(including an international body or organisation) whether within or outside Australia.
Note: Under subsection 27(1), the Commissioner may
determine the terms and conditions of employment applying to an AFP employee
seconded under this section.
Termination of secondment
(2) The Commissioner may at any time
terminate a secondment under subsection (1) after consultation with the
Police Force, the Public Service Commissioner or the body or organisation, as
the case may be.
Minister may give guidelines for secondments outside Australia
(3) The Minister may give the Commissioner
written guidelines on the secondment of AFP employees to the Police Force of a
foreign country, or to any other body or organisation outside Australia.
(4) The Minister must consult the
Commissioner about the guidelines before giving them to the Commissioner.
(5) If the Minister gives guidelines to the
Commissioner, the Commissioner must not arrange for an AFP employee to be
seconded to the Police Force of a foreign country, or to any other body or organisation
outside Australia, except in accordance with the guidelines.
40G
Effect of secondment on status as AFP employee etc.
Secondment has no effect on person’s status
(1) The secondment under section 40F of
a person who is an AFP employee does not affect:
(a) the person’s status as an AFP
employee; and
(b) if the person is a member—the
person’s status as a member; and
(c) the application of any provision
of this Act in relation to the person during the period of the secondment.
AFP professional standards obligations etc. continue
(2) During a period of secondment of an AFP
employee under section 40F, the employee remains subject to the same
obligations and liabilities in relation to AFP professional standards as those
to which the employee would, but for the secondment, have been subject as such
an employee.
Rights etc. arising from office or position to which
person seconded
(3) Nothing in this section affects:
(a) any rights, powers or immunities
that an AFP employee who is seconded under section 40F has by virtue of
holding the office or position to which the employee has been seconded; or
(b) the extent to which the employee
is subject to obligations or liabilities in relation to discipline by virtue of
holding the office or position to which the employee has been seconded.
Division 5—Assignment and suspension of duties etc.
40H
Assignment of duties etc.
(1) The Commissioner may from time to time
determine in writing the duties of an AFP employee, and the place or places at
which the duties are to be performed.
Determination of terms and conditions while AFP
employee outside Australia
(2) The Commissioner may from time to time
determine in writing the terms and conditions applying to an AFP employee while
the employee is performing duties outside Australia.
Duties to meet special operational needs
(3) If:
(a) the Commissioner makes a
determination under subsection (1); and
(b) the Commissioner specifies in the
determination that the duties concerned are to meet the special operational
needs of the Australian Federal Police;
the Commissioner may determine in writing the
accommodation arrangements that are to apply to the employee, or any allowances
the employee is to be paid, while the employee is performing those duties.
(4) Without limiting subsection 33(3) of the Acts
Interpretation Act 1901, the Commissioner may at any time revoke in writing
a determination made under subsection (1).
40J
Suspension from duties etc.
(1) The regulations may do any one or more of
the following:
(a) provide for the suspension from
duties of AFP employees, with or without remuneration;
(aa) provide that, while suspended from
duty, an AFP employee may be required to comply with directions of a kind
mentioned in subsection (2);
(ab) provide that, while suspended from
duty, an AFP employee may take or be on annual leave if:
(i) the certified
agreement or collective agreement for the time being in force would otherwise
deem or require the AFP member to be on annual leave for the period necessary
to reduce the balance of annual leave credits to the level specified in the
relevant agreement; or
(ii) in the case of an AFP
employee who is suspended without remuneration—the AFP employee applies to take
annual leave that he or she would, if approved, otherwise be able to take;
(b) provide that declarations under
section 40B (about declaring AFP employees to be members) cease to be in
force during a specified period.
Note: A declaration under section 40B could
also be revoked etc. under subsection 33(3) of the Acts Interpretation Act
1901.
(2) The kind of directions that an AFP
employee may be required to comply with while suspended from duty are:
(a) directions that the AFP employee
would be required to comply with if the AFP employee were not suspended from
duty; and
(b) directions that are given for the
purposes of:
(i) determining whether
the AFP employee or any other AFP employee has committed a criminal offence or
failed to maintain AFP professional standards; or
(ii) assessing the
continuing employment suitability of the AFP employee; or
(iii) ensuring continuity,
during the period of suspension, in the performance of the AFP employee’s
duties, being a direction that the employee only is able to comply with.
(3) To avoid doubt, an AFP employee who takes
annual leave while suspended without remuneration is to be paid as if the
employee were taking annual leave while not suspended.
Division 6—Declarations of serious misconduct
40K
Termination of employment for serious misconduct
(1) If the Commissioner terminates the
employment of an AFP employee under section 28 because the Commissioner
believes, on reasonable grounds, that the employee’s conduct or behaviour, or
any part of it:
(a) amounts to serious misconduct by
the employee; and
(b) is having, or is likely to have, a
damaging effect on:
(i) the professional self‑respect
or morale of some or all of the AFP employees; or
(ii) the reputation of the
Australian Federal Police with the public, or with any section of the public,
or with an Australian or overseas government or law enforcement agency;
the Commissioner may make a written declaration to that
effect.
Timing of declaration etc.
(2) Any declaration under subsection (1)
must be made within 24 hours of the Commissioner’s decision to terminate the
employment of the AFP employee. The Commissioner must give a copy of the
declaration to the AFP employee.
Definition
(3) In this section:
serious misconduct means:
(a) corruption, a serious abuse of
power, or a serious dereliction of duty; or
(b) any other seriously reprehensible
act or behaviour by an AFP employee, whether or not acting, or purporting to
act, in the course of his or her duties as an AFP employee.
Division 7—Submission of financial statements
40L
Financial statements
(1) The Commissioner may give a person who is
an AFP employee or a special member a written direction requiring the person to
give the Commissioner a statement in accordance with subsection (2).
Nature etc. of statement
(2) The statement must:
(a) be made in a form and manner
required by the Commissioner; and
(b) contain any information required
by the Commissioner about the financial affairs of the person during a period,
or each period, specified by the Commissioner; and
(c) be accompanied by any documents
required by the Commissioner.
Time limit for giving statement
(3) The person must give the statement to the
Commissioner within 2 months after the end of the period to which the statement
relates.
Extension of time
(4) The Commissioner may grant an extension
of time for giving the statement in special circumstances.
Self‑incrimination
(5) The person is not excused from giving the
statement on the ground that the statement might tend to incriminate him or her
or make him or her liable to a penalty.
(6) However, any statement so given is not
admissible in evidence against the person in any proceedings.
Division 8—Drug testing
40LA
Alcohol screening tests
(1) An AFP appointee authorised under section 40PA
to act as a manager (the authorised manager) may require another
AFP appointee (the screening test subject) to undergo an alcohol
screening test if:
(a) the screening test subject is on
duty; and
(b) the authorised manager reasonably
suspects that the screening test subject is under the influence of alcohol.
Compliance with direction
(2) The screening test subject must comply
with the requirement given to him or her under subsection (1).
Test results
(3) If the result of the alcohol screening
test shows that alcohol is not present in the screening test subject’s blood,
the screening test subject may return to his or her duties immediately.
(4) If:
(a) the result of the alcohol
screening test shows that alcohol is present in the screening test subject’s
blood; or
(b) the screening test subject refuses
to undergo the alcohol screening test;
the screening test subject may be given a written
direction under section 40M to undergo a breath test if the screening test
subject is an AFP employee or a special member.
(5) This section does not limit the operation
of section 40M.
40M Alcohol
breath tests and prohibited drug tests
(1) A person authorised to do so under the
regulations may give an AFP employee, or a special member, who is on duty a
written direction requiring him or her:
(a) to undergo a breath test; or
(b) to provide a body sample of a kind
specified in the direction for a prohibited drug test;
in accordance with the regulations.
Providing blood sample if breath test indicates the
presence of alcohol
(2) If:
(a) an AFP employee or a special
member, in accordance with a direction under subsection (1), undergoes a
breath test; and
(b) the breath test indicates the
presence of alcohol;
he or she may provide a sample of his or her blood for the
purpose of a blood test, in accordance with the regulations.
Compliance with direction
(3) An AFP employee or a special member must
comply with a direction given to him or her under this section.
40N Alcohol
breath tests and prohibited drug tests after certain incidents
Person killed or seriously injured in an incident
involving a motor vehicle or vessel or while in police custody
(1) If:
(a) a person is killed or seriously
injured as a result of an incident involving a motor vehicle or vessel; or
(b) an incident occurs in which a
person is killed or seriously injured while in police custody;
a person authorised to do so in accordance with the
regulations may give any AFP employee or special member directly involved in
the incident while on duty a written direction requiring him or her:
(c) to undergo a breath test; or
(d) to provide a body sample of a kind
specified in the direction for a prohibited drug test;
in accordance with the regulations.
Note: Such a direction may be given whether or not
the employee or special member is still on duty: see subsection (3).
Person killed or seriously injured by a firearm
discharging or physical force
(2) If an incident occurs in which a person
is killed or seriously injured as a result of:
(a) the discharge of a firearm; or
(b) the application of physical force;
by a member or a special member while he or she is on
duty, a person authorised to do so in accordance with the regulations may give
the member or special member a written direction requiring him or her:
(c) to undergo a breath test; or
(d) to provide a body sample of a kind
specified in the direction for a prohibited drug test;
in accordance with the regulations.
Note: Such a direction may be given whether or not
the member or special member is still on duty: see subsection (3).
Direction to be given as soon as practicable after the
incident
(3) A direction under subsection (1) or
(2) must be given by an authorised person as soon as practicable after the
incident concerned and may be given whether or not the AFP employee or special
member is still on duty.
Provision of blood or body sample while in hospital
(4) If an AFP employee or a special member
involved in the incident attends or is admitted to a hospital for examination
or treatment because of the incident, a person authorised to do so in
accordance with the regulations may give the employee or special member a
written direction requiring him or her:
(a) to provide a sample of his or her
blood for a blood test; or
(b) to provide a body sample of a kind
specified in the direction for a prohibited drug test;
in accordance with the regulations.
Compliance with direction
(5) An AFP employee or a special member must
comply with a direction given to him or her under this section.
40P
Regulations
For the purposes of sections 40LA, 40M
and 40N, the regulations may make provision, not inconsistent with those
sections, in relation to the following:
(a) the authorisation of persons to
give directions under those sections;
(b) the authorisation of persons:
(i) to conduct alcohol
screening tests, breath tests, blood tests or prohibited drug tests for the
purpose of those sections; and
(ii) to operate equipment
for that purpose;
(c) the provision of samples of blood
for the purpose of blood tests under those sections;
(d) the provision of body samples for
the purpose of prohibited drug tests under those sections;
(e) the conduct of alcohol screening
tests, breath tests, blood tests or prohibited drug tests under those sections;
(f) the devices used in conducting
breath tests, blood tests or prohibited drug tests under those sections,
including the calibration, inspection and testing of those devices;
(g) in the case of blood tests and
prohibited drug tests—the accreditation of persons to conduct analyses in
connection with such tests;
(h) the procedure for the handling and
analysis of:
(i) samples of blood taken
in connection with blood tests under those sections; or
(ii) body samples taken in
connection with prohibited drug tests under those sections;
(i) the giving of the test results in
certificates or other documents and the evidentiary effect of such certificates
or other documents;
(j) the confidentiality of the test
results.
Note: Paragraph (a)—persons may give directions
under sections 40M and 40N. However, for a person’s power to give a
requirement under section 40LA, see section 40PA.
40PA
Managers who may require alcohol screening tests
The Commissioner may issue
Commissioner’s orders under section 38 authorising particular kinds of AFP
appointees to act as managers for the purpose of section 40LA.
40Q
Admissibility of test results etc. in legal proceedings
The following:
(a) a certificate or other document
recording the results of a test conducted under section 40M or 40N in
relation to an AFP employee or a special member;
(b) a certificate or other document
recording the results of an alcohol screening test conducted under section 40LA
in relation to an AFP appointee;
(c) any other information, answer to a
question or document relevant to conducting such a test (including any
information or answer given or document produced in compliance with section 40);
is not admissible in evidence against the employee,
special member or AFP appointee in any proceedings other than the following:
(d) proceedings in relation to a
decision of the Commissioner to terminate the employment of the employee or the
AFP appointee or to terminate the appointment of the special member or the AFP
appointee;
(e) proceedings under the Safety,
Rehabilitation and Compensation Act 1988;
(f) proceedings in tort against the
Commonwealth that are instituted by the employee, special member or AFP
appointee.
40R
Approval of screening devices
(1) The Minister may, in writing, approve
devices of a type described in the approval to be approved screening devices if
he or she is of opinion that:
(a) devices of that type have been
designed and made for the purpose of indicating, when a sample of the breath of
a person is exhaled into the device, whether alcohol is present in the blood of
the person; and
(b) devices of that type are suitable
devices for use in tests under section 40LA.
(2) An approval under this section is a
legislative instrument.
Part V—Professional standards and AFP conduct and practices issues
Division 1—Preliminary
Subdivision A—Objects and simplified outline of Part
40RA
Object of this Part
The object of this Part is to establish
the procedures by which:
(a) AFP conduct issues and AFP
practices issues; and
(b) other issues related to the
Australian Federal Police;
may be raised and dealt with.
40RB
Simplified outline of this Part
(1) This Part deals with the handling of:
(a) AFP conduct issues and AFP
practices issues; and
(b) other issues related to the
Australian Federal Police.
(2) These issues may be:
(a) issues that are raised by information
given to the Australian Federal Police (see section 40SA); or
(b) issues that the Commissioner
decides, on his or her own initiative, are to be dealt with under this Part
(see section 40SD); or
(c) issues that are referred to the
Australian Federal Police by the Integrity Commissioner under the Law
Enforcement Integrity Commissioner Act 2006 or by the Ombudsman under the Ombudsman
Act 1976; or
(d) issues that the Minister directs
are to be inquired into under Division 4.
(3) How a particular AFP conduct issue is
dealt with depends on the category to which the issue belongs. Sections 40RK
to 40RP deal with the categorisation of AFP conduct issues.
(4) AFP conduct issues that belong to the 2
less serious categories (categories 1 and 2) are dealt with managerially and
may be addressed by training and development action (see section 40TC) or
remedial action (see section 40TD).
(5) AFP conduct issues that belong to the 2
more serious categories (category 3 and corruption issues) are dealt with
through more formal investigations and may be addressed not only by training
and development action and remedial action but also by termination action (see
section 40TE) and other action. The investigation may also give rise to a
prosecution for an offence.
(6) Division 5 confers special
investigative powers on people who conduct:
(a) investigations under Division 3
of category 3 conduct issues or corruption issues; or
(b) inquiries under Division 4.
(7) The Ombudsman plays a number of roles
under this Part. The Ombudsman:
(a) determines, jointly with the
Commissioner, the particular kinds of conduct that are to belong to the various
categories of conduct (see section 40RM); and
(b) is consulted by the Commissioner
on the appointment of investigators under section 40TO (see subsection
40TO(6)); and
(c) is entitled under section 40WA
to have access to the records that are kept in relation to AFP conduct issues
and AFP practices issues under that section; and
(d) conducts annual reviews and ad hoc
reviews of the operation of this Part under Division 7.
Subdivision B—Professional standards for AFP appointees
40RC
Commissioner may determine professional standards
(1) The Commissioner may issue Commissioner’s
orders under section 38 determining the professional standards to be
complied with by AFP appointees.
(2) Without limiting subsection (1), the
Commissioner may determine a professional standard by reference to the
requirements specified in:
(a) another Commissioner’s order; or
(b) another document issued or made by
the Commissioner in the exercise of the Commissioner’s powers under section 37.
(3) Despite section 46AA of the Acts
Interpretation Act 1901, a document referred to in paragraph (2)(a) or
(b) may be a document:
(a) as in force at a particular time;
or
(b) as in force from time to time.
Subdivision C—Unit within Australian Federal Police to undertake
professional standards functions
40RD
Unit to be constituted
(1) The Commissioner must constitute, within
the Australian Federal Police, a unit to undertake investigations of:
(a) AFP conduct issues that are
category 3 conduct issues; and
(b) corruption issues that relate to
conduct engaged in by AFP appointees.
(2) The Commissioner may determine, from time
to time, the name by which the unit is to be known.
(3) The establishment of the unit is to be
such as the Commissioner determines from time to time.
(4) In determining and varying the
establishment of the unit, the Commissioner must ensure, so far as it is
practicable for the Commissioner to do so, that the staffing of the unit is
adequate to enable the unit to perform its functions under this Part
effectively.
40RE
Head of unit
(1) The Commissioner may appoint an AFP
appointee, in writing, to be the head of the unit constituted under section 40RD.
(2) The head of the unit is responsible for
the performance by the unit of its functions.
(3) The head of the unit is responsible under
subsection (2) directly to:
(a) the Commissioner; or
(b) if the Commissioner so directs—the
Deputy Commissioner, or senior executive AFP employee who is at a level
equivalent to that of a Deputy Commissioner, specified in the direction.
40RF
Assignment of members, and special members, to unit
(1) The Commissioner may, in writing, assign
a member, or special member, of the Australian Federal Police to the unit
constituted under section 40RD.
(2) The assignment must:
(a) be in writing; and
(b) specify the period during which
the member, or special member, is to serve in the unit.
(3) The period specified under paragraph (2)(b)
must not exceed 2 years.
(4) If the Commissioner is satisfied that
there are special reasons for doing so, the Commissioner may vary, or further
vary, the assignment under subsection (1) by substituting for the period
specified in the assignment a shorter or longer period.
(5) The period substituted under subsection (4)
may exceed 2 years.
(6) As soon as practicable after the member,
or special member, has served in the unit for the period specified in the
assignment, the Commissioner must arrange for the member, or special member, to
cease serving in the unit.
(7) If:
(a) a member, or special member, of
the Australian Federal Police is assigned to the unit constituted under section 40RD;
and
(b) the member, or special member,
ceases to serve in the unit; and
(c) the period of 12 months from the
time when the member, or special member, ceased to serve in the unit ends;
the member, or special member, may again be assigned to
the unit.
40RG
Member or special member in unit may be directed to perform other duties
The Commissioner may direct a member, or
special member, of the Australian Federal Police serving in the unit
constituted under section 40RD to perform duties that are not related to
the unit’s functions but only if those duties do not unduly interfere with the
performance by the unit of its functions.
Subdivision D—AFP conduct issues and AFP practices issues
40RH
AFP conduct issues
(1) For the purposes of this Act, an AFP
conduct issue is an issue of whether an AFP appointee has:
(a) engaged in conduct that
contravenes the AFP professional standards; or
(b) engaged in corrupt conduct.
(2) Subsection (1) applies even if:
(a) the AFP appointee who engaged in
the conduct has ceased to be an AFP appointee; or
(b) the conduct:
(i) was engaged in while
the AFP appointee was not on duty; or
(ii) is conduct of a
private character; or
(iii) was engaged in before
the AFP appointee became an AFP appointee; or
(c) the conduct that was engaged in by
the AFP appointee also involves or implicates someone who is not an AFP
appointee; or
(d) the period for bringing a
prosecution for an offence, or other proceedings, in relation to the conduct
has ended; or
(e) the conduct was engaged in before
the commencement of this section.
(3) Subsection (1) applies whether the
conduct was engaged in within, or outside, Australia.
(4) To avoid doubt, information may raise an AFP
conduct issue even if the identity of the AFP appointee who engaged in
the conduct is unknown, is uncertain or is not disclosed in the information.
(5) This section has effect subject to
section 40RJ.
(6) A reference in this section to engaging
in conduct includes a reference to failing, or refusing, to engage in
conduct.
40RI
AFP practices issues
(1) For the purposes of this Act, an AFP
practices issue is an issue about the practices or procedures of the
Australian Federal Police (whether those practices or procedures are carried
out within, or outside, Australia).
(2) Without limiting subsection (1), an AFP
practices issue includes an issue of whether a practice or procedure of
the Australian Federal Police is or has been:
(a) contrary to law; or
(b) unreasonable, unjust, oppressive
or improperly discriminatory; or
(c) inadequate; or
(d) otherwise wrong or inappropriate.
(3) For the purposes of this Act, the practices
or procedures of the Australian Federal Police include:
(a) the rules, orders and instructions
(including the Commissioner’s Orders) in accordance with which AFP appointees
are required to perform their duties; and
(b) the policies adopted or followed
by the Australian Federal Police; and
(c) the practices and procedures
ordinarily followed by AFP appointees in the performance of their duties.
(4) This section has effect subject to
section 40RJ.
40RJ
Exclusion of certain employment action
(1) For the purposes of this Act, an AFP
conduct issue does not include an issue that relates to conduct of a
person that is conduct that:
(a) consists of action taken in
relation to an AFP appointee’s employment; and
(b) involves neither:
(i) a contravention by the
person of the AFP professional standards; nor
(ii) corrupt conduct by the
person.
(2) For the purposes of this Act, an AFP
practices issue does not include an issue that relates a practice or procedure
of the Australian Federal Police that is a practice or procedure that:
(a) relates to action taken in
relation to AFP appointees’ employment; and
(b) involves neither:
(i) contraventions the AFP
professional standards; nor
(ii) corrupt conduct by AFP
appointees.
(3) Without limiting subsections (1) and
(2), action taken in relation to an AFP appointee’s employment includes action
taken in relation to:
(a) the appointment of the AFP
appointee; or
(b) the terms and conditions of
employment of the AFP appointee; or
(c) the promotion of the AFP
appointee; or
(d) the termination of the AFP
appointee’s appointment; or
(e) the management of performance that
does not meet AFP professional standards; or
(f) the payment of remuneration to
the AFP appointee.
Subdivision E—Categories of AFP conduct issues and managers
40RK
Categories of conduct
(1) There are 4 categories of conduct for the
purposes of this Act.
(2) The lowest, and least serious, is
category 1.
(3) The next highest, and next most serious,
is category 2.
(4) The next highest, and next most serious,
is category 3.
(5) The highest, and most serious, is conduct
giving rise to a corruption issue.
(6) If conduct would otherwise belong to more
than one category, it is taken to belong to the higher or highest of those
categories.
(7) The category to which conduct belongs may
change as more information is obtained in relation to the conduct.
40RL
Categories of AFP conduct issues
(1) A category 1 conduct issue
is an issue of whether an AFP appointee has engaged in category 1 conduct.
(2) A category 2 conduct issue
is an issue of whether an AFP appointee has engaged in category 2 conduct.
(3) A category 3 conduct issue
is an issue of whether an AFP appointee has engaged in category 3 conduct.
40RM
AFP Commissioner and Ombudsman to determine the kinds of conduct that are to be
category 1, category 2 or category 3 conduct
(1) Subject to sections 40RN, 40RO and
40RP, the Commissioner and the Ombudsman may jointly determine, by legislative
instrument:
(a) the kind of conduct that is to be
category 1 conduct for the purposes of this Act; and
(b) the kind of conduct that is to be
category 2 conduct for the purposes of this Act; and
(c) the kind of conduct that is to be
category 3 conduct for the purposes of this Act.
(2) If there is no determination under subsection (1)
that applies to particular conduct, the conduct is to be taken to be category 3
conduct for the purposes of this Act.
40RN
Category 1 conduct
The Commissioner and the Ombudsman may
determine under subsection 40RM(1) that conduct of a particular kind is to be
category 1 conduct for the purposes of this Act only if they are satisfied
that:
(a) conduct of that kind is
inappropriate conduct that:
(i) relates to minor
management matters or customer service matters; or
(ii) reveals a need for
improvement in the performance of the AFP appointee concerned; and
(b) conduct of that kind does not
warrant being treated as category 2 or category 3 conduct for the purposes of
this Act.
40RO
Category 2 conduct
The Commissioner and the Ombudsman may
determine under subsection 40RM(1) that conduct of a particular kind is to be
category 2 conduct for the purposes of this Act only if they are satisfied
that:
(a) conduct of that kind is:
(i) minor misconduct by an
AFP appointee; or
(ii) inappropriate conduct
that reveals unsatisfactory behaviour by an AFP appointee; and
(b) conduct of that kind:
(i) would otherwise be
category 1 conduct; and
(ii) warrants, because of
its repeated nature, being treated as category 2 conduct for the purposes of
this Act; and
(c) conduct of that kind does not
warrant being treated as category 3 conduct for the purposes of this Act.
40RP
Category 3 conduct
(1) The Commissioner and the Ombudsman may determine
under subsection 40RM(1) that conduct of a particular kind is to be category 3
conduct for the purposes of this Act only if they are satisfied that:
(a) conduct of that kind:
(i) is serious misconduct
by an AFP appointee; or
(ii) raises the question
whether termination action should be taken in relation to an AFP appointee; or
(iii) involves a breach of
the criminal law, or serious neglect of duty, by an AFP appointee; and
(b) conduct of that kind does not
raise a corruption issue.
(2) Subparagraphs (1)(a)(ii) and (iii)
do not limit subparagraph (1)(a)(i).
40RQ
Managers for particular categories of AFP conduct issues
The Commissioner may issue
Commissioner’s orders under section 38:
(a) authorising particular kinds of
AFP appointees to act as managers for category 1 conduct issues; or
(b) authorising particular kinds of
AFP appointees to act as managers for category 2 conduct issues.
Division 2—Raising AFP conduct and practices issues with the AFP for
action under Division 3
40SA
Giving information that raises an AFP conduct or practices issue
(1) A person may give information that raises
an AFP conduct or practices issue to:
(a) the Commissioner; or
(b) an AFP appointee.
(2) The person:
(a) may give the information orally or
in writing; and
(b) may give the information
anonymously.
(3) For the purposes of this Act, the person
is a complainant in relation to the AFP conduct or practices
issue, if:
(a) the person expressly indicates; or
(b) the manner in which the person
gives the information necessarily implies;
that he or she wishes to be kept informed of the action
taken in relation to the issue.
(4) If the person gives the information
orally, the Commissioner, the AFP appointee to whom the information is given or
the AFP appointee or other person to whom the issue is allocated:
(a) may reduce the information to
writing; and
(b) may, at any time, require the
person giving the information to reduce the information to writing; and
(c) may, if he or she makes a
requirement under paragraph (b), decline to take any further action in
relation to the information until the person giving the information reduces the
information to writing.
(5) If the Ombudsman decides to refer
information under subsection 6(21) of the Ombudsman Act 1976, the person
who gave the information to the Ombudsman is taken to have given the
Commissioner information that raises an AFP conduct or practices issue under
this section.
(6) A person’s right to give information
under this section:
(a) is in addition to the provisions
of any other law; and
(b) does not affect the operation of
any other law; and
(c) without limiting the generality of
paragraphs (a) and (b), does not:
(i) prevent or affect the
taking of legal proceedings under some other law in respect of conduct engaged
in by an AFP appointee; or
(ii) affect the operation
of any other law in respect of legal proceedings so taken.
40SB
Arrangements for person in custody to give information
(1) This section applies if a person (the detainee)
is being detained in custody.
(2) For the purposes of this section, a custodian
is:
(a) the person in whose custody the
detainee is being detained; or
(b) another person performing duties
in connection with the detainee’s detention.
(3) The detainee may request a custodian to
provide the detainee with:
(a) facilities for preparing written
information to give the Commissioner under section 40SA; and
(b) facilities for giving further
information to:
(i) the Commissioner; or
(ii) the person to whom the
relevant AFP conduct or practices issue is allocated; and
(c) facilities for enclosing the
complaint or the further information in a sealed envelope.
(4) If the detainee requests facilities under
subsection (3), the detainee is entitled to be provided with those
facilities.
(5) The detainee may request a custodian to
have sent to the Commissioner (or the person to whom the relevant AFP conduct
or practices issue is allocated) a sealed envelope that is:
(a) delivered by the detainee to the
custodian; and
(b) addressed to the Commissioner (or
the person to whom the issue is allocated).
(6) If the detainee makes a request under subsection (5),
the detainee is entitled to have the envelope delivered to the Commissioner (or
the person to whom the relevant AFP conduct or practices issue is allocated)
without undue delay.
(7) The detainee is entitled to have
delivered to the detainee, without undue delay, any sealed envelope that:
(a) is addressed to the detainee and
sent by the Commissioner (or the person to whom the relevant AFP conduct or
practices issue is allocated); and
(b) comes into the possession, or
under the control, of a custodian.
(8) A custodian is not entitled to open, or
inspect any document enclosed in, a sealed envelope that:
(a) either:
(i) is addressed to the
Commissioner (or the person to whom the relevant AFP conduct or practices issue
is allocated) and delivered by the detainee to a custodian for sending to the
Commissioner; or
(ii) is addressed to the
detainee and sent by the Commissioner (or the person to whom the relevant AFP
conduct or practices issue is allocated); and
(b) comes into the possession, or
under the control, of a custodian.
(9) For the purposes of this section, the
Commissioner may make arrangements with the appropriate authority of a State or
a Territory for the identification and delivery of sealed envelopes sent by the
Commissioner (or the person to whom the relevant AFP conduct or practices issue
is allocated) to persons detained in custody in that State or Territory.
40SC
Recording and dealing with information given under section 40SA
(1) If a person gives information to another
person (the recipient) under section 40SA, the recipient
must:
(a) record the details of the
information; and
(b) deal with the information in
accordance with the Commissioner’s orders issued for the purposes of subsection
40TA(1).
(2) Subsection (1) does not apply if:
(a) the issue to which the information
relates is:
(i) a category 1 conduct
issue; or
(ii) an AFP practices
issue; and
(b) the recipient is satisfied that
the issue:
(i) arises as a result of
a misunderstanding of the facts, the law or the practices or procedures of the
Australian Federal Police; or
(ii) is otherwise
appropriate for informal resolution; and
(c) the recipient is satisfied that:
(i) giving an explanation
to the person giving the information; or
(ii) taking other action;
is likely to resolve the issue;
and
(d) the recipient is satisfied that
the recipient is able to give the person giving the information that
explanation, or arrange for that action to be taken, within a reasonable
period.
(3) If the issue is not resolved within a
reasonable period, the recipient must:
(a) record the details of the
information; and
(b) deal with the information in accordance
with the Commissioner’s orders issued for the purposes of subsection 40TA(1).
40SD
Commissioner may decide that AFP conduct issue should be dealt with under this
Part
The Commissioner may decide, on his or
her own initiative, that an AFP conduct issue is to be dealt with under this
Part.
40SE
Recording and dealing with information referred under section 40SD
If the Commissioner decides under
section 40SD that an AFP conduct issue is to be dealt with under this
Part, the Commissioner must:
(a) record the details of the
information; and
(b) deal with the issue in accordance
with the Commissioner’s orders issued for the purposes of subsection 40TA(1).
Division 3—Dealing with AFP conduct or practices issues
Subdivision A—Preliminary
40TA
Commissioner’s orders about how AFP conduct or practices issues are dealt with
(1) The Commissioner may issue Commissioner’s
orders under section 38 in relation to how:
(a) AFP conduct or practices issues;
and
(b) information about AFP conduct or
practices issues;
are to be dealt with by AFP appointees under this Part.
(2) Without limiting subsection (1), the
Commissioner must, so far as practicable, ensure that the complainant (if any)
in relation to an AFP conduct issue:
(a) is kept informed, as frequently as
is reasonable, and to the extent that is reasonable, in the circumstances, of
progress in dealing with:
(i) the AFP conduct issue;
and
(ii) any AFP practices
issue that the person to whom the issue is allocated identifies in the course
of dealing with the AFP conduct issue; and
(b) is advised of any action taken in
relation to an issue referred to in paragraph (a).
(3) Without limiting subsection (1), the
Commissioner must, so far as practicable, ensure that the complainant (if any)
in relation to an AFP practices issue:
(a) is kept informed, as frequently as
is reasonable, and to the extent that is reasonable, in the circumstances, of
progress in dealing with the AFP practices issue; and
(b) is advised of any action taken in
relation to the AFP practices issue.
40TB
Dealing with related AFP conduct issues that have different categories
If:
(a) a number of AFP conduct issues
relate to the same AFP appointee; and
(b) those AFP conduct issues belong to
different categories;
those AFP conduct issues may be dealt with together as if
they all belonged to the higher or highest of those categories.
40TC
Training and development action
(1) For the purposes of this Act, training
and development action in relation to an AFP appointee is action taken
to improve the appointee’s performance through training and development.
(2) Without limiting subsection (1), training
and development action in relation to the AFP appointee may take one or
more of the following forms:
(a) coaching the AFP appointee or making
arrangements for the AFP appointee to be coached;
(b) mentoring the AFP appointee or
making arrangements for the AFP appointee to be mentored;
(c) making arrangements for the AFP
appointee to undertake training activities;
(d) making arrangements for the AFP
appointee to undertake development activities;
(e) increasing, or making arrangements
for increasing, the level of supervision of the AFP appointee’s work.
40TD
Remedial action
(1) For the purposes of this Act, remedial
action in relation to an AFP appointee is action taken to remedy
unsatisfactory performance by the AFP appointee.
(2) Without limiting subsection (1), remedial
action in relation to the AFP appointee may include one or more of the
following:
(a) action taken to improve the AFP
appointee’s behaviour;
(b) structured changes to the AFP
appointee’s employment;
(c) the recording of adverse findings
against the AFP appointee (whether for a particular period or permanently).
(3) Without limiting paragraph (2)(a), remedial
action in relation to the AFP appointee may take one or more of the
following forms:
(a) counselling the AFP appointee or
arranging for the AFP appointee to be counselled;
(b) reprimanding the AFP appointee;
(c) giving the AFP appointee a formal
warning;
(d) requiring the AFP appointee to
adopt particular improvement strategies.
(4) Without limiting paragraph (2)(b), remedial
action in relation to the AFP appointee may take one or more of the
following forms:
(a) changing the AFP appointee’s
shifts or arranging for or recommending such a change;
(b) restricting the AFP appointee’s
duties or arranging for or recommending such a restriction;
(c) reassigning the AFP appointee to
other duties or arranging for or recommending such a reassignment;
(d) transferring the AFP appointee to
another part of the Australian Federal Police or arranging for or recommending
such a transfer.
40TE
Termination action
The following table sets out the action
that is termination action in relation to each kind of AFP
appointee for the purposes of this Act:
|
Termination action
|
|
Item
|
For this kind of AFP
appointee ...
|
termination action
is ...
|
|
1
|
a Deputy Commissioner
|
the Governor‑General terminating the Deputy
Commissioner’s appointment
|
|
2
|
an AFP employee
|
the Commissioner terminating the AFP employee’s employment
under section 28
|
|
3
|
a special member
|
the Commissioner terminating the special member’s
appointment as a special member of the Australian Federal Police
|
|
4
|
a special protective service officer
|
the Commissioner terminating the special protective
service officer’s appointment as a special protective service officer of the
Australian Federal Police
|
|
5
|
a person engaged overseas under section 69A to
perform duties overseas as an employee of the Australian Federal Police
|
the Commissioner terminating the person’s engagement
|
|
6
|
a person (the consultant/contractor) who is
engaged under section 35 as a consultant, or independent contractor, to
perform services for the Australian Federal Police
|
the Commissioner:
(a) terminating the consultant/contractor’s engagement; or
(b) arranging for a person to cease to perform services for
the Australian Federal Police on behalf of the consultant/contractor
|
|
7
|
a person assisting the Australian Federal Police in the
performance of its functions under an agreement under section 69D
|
the Commissioner arranging for the person to cease to
assist the Australian Federal Police in the performance of its functions
|
Subdivision B—Discretion to take no further action in relation to issue
40TF
Discretion to take no further action in relation to AFP conduct or practices
issue
(1) This section applies if:
(a) a person gives information under
section 40SA that raises:
(i) an AFP conduct issue
in relation to conduct engaged in by an AFP appointee; or
(ii) an AFP practices issue
in relation to a practice or procedure of the AFP; or
(b) the Commissioner decides under
section 40SD that an AFP conduct issue in relation to an AFP appointee is
to be dealt with under this Part.
(2) The Commissioner may determine that no
further action is to be taken under this Part in relation to the issue if the
Commissioner is satisfied that:
(a) the person became aware of the
conduct, or the practice or procedure, more than 12 months before the person
gave the information under section 40SA; or
(b) appropriate action has already
been taken:
(i) against the AFP
appointee in relation to the conduct; or
(ii) in relation to the
practice or procedure; or
(c) the person giving the information
has exercised a right to have the conduct, or the practice or procedure,
reviewed by a court or tribunal constituted by or under a law and there is no
special reason to take further action in relation to the conduct or the
practice or procedure; or
(d) the person giving the information
has a right to have the conduct, or the practice or procedure, reviewed by a
court or tribunal constituted by or under a law but has not exercised that
right and, having regard to all the circumstances, it would be reasonable for
the person to have exercised that right; or
(e) the giving of the information is
frivolous or vexatious; or
(f) the information is trivial; or
(g) the person giving the information
did not give the information in good faith; or
(h) the person giving the information
does not have a sufficient interest in the AFP conduct issue or the AFP
practices issue; or
(i) the conduct:
(i) occurred when the AFP
appointee was not on duty; or
(ii) was private conduct of
the AFP appointee;
and was lawful and reasonable in
the circumstances; or
(j) the person giving the information
is an AFP appointee, or has been an AFP appointee, and the information relates
to action taken in relation to that AFP appointee as a result of information
that was given and dealt with under this Part; or
(k) the investigation, or further
investigation, of the issue is not warranted having regard to all the
circumstances; or
(l) any other condition specified in
the regulations for the purposes of this paragraph is satisfied.
Subdivision C—Dealing with category 1 and category 2 conduct issues
40TG
When Subdivision applies
(1) This Subdivision applies if:
(a) information that is given under
section 40SA raises an AFP conduct issue in relation to an AFP appointee;
and
(b) the issue is a category 1 or
category 2 conduct issue; and
(c) the issue is allocated to an AFP
appointee (the manager).
(2) This Subdivision also applies if:
(a) the Commissioner decides under
section 40SD that an AFP conduct issue in relation to an AFP appointee is
to be dealt with under this Part; and
(b) the issue is a category 1 or
category 2 conduct issue; and
(c) the issue is allocated to an AFP
appointee (the manager).
40TH
How issue is dealt with
(1) In dealing with the AFP conduct issue,
the manager must:
(a) ensure that:
(i) the AFP appointee; and
(ii) the complainant (if
any);
have an adequate opportunity to
be heard in relation to the issue; and
(b) ensure that the AFP appointee is
involved, as far as practicable, in the resolution of the issue; and
(c) determine what action (if any) is
to be taken under section 40TI or 40TJ in relation to the issue; and
(d) consider whether the information:
(i) given under section 40SA
in relation to the issue; or
(ii) obtained in the course
of dealing with the issue;
raises an AFP practices issue.
Note: Paragraph (d)—see also section 40TK.
(2) Without limiting the ways in which the
manager may deal with the AFP conduct issue, the manager may:
(a) attempt to resolve the issue by
conciliation; or
(b) authorise another AFP appointee to
attempt to resolve the issue by conciliation.
(3) To avoid doubt:
(a) the conduct or outcome of
conciliation undertaken under subsection (2) does not limit the action
that the manager may take under section 40TI or 40TJ; and
(b) the manager may take into account
the conduct or outcome of conciliation undertaken under subsection (2) in
deciding what action (if any) to take under section 40TI or 40TJ.
(4) Any information that the AFP appointee
gives, in the course of conciliation undertaken under subsection (2), to:
(a) the manager; or
(b) the person authorised by the
manager to attempt to resolve the AFP conduct issue by conciliation; or
(c) the complainant;
is not admissible against the AFP appointee in any
criminal or civil proceedings.
40TI
Action that may be taken in relation to category 1 conduct
If the manager is satisfied, on
reasonable grounds, that the AFP appointee has engaged in category 1 conduct,
the manager may take training and development action in relation to the AFP
appointee.
Note: For training and development action,
see section 40TC.
40TJ
Action that may be taken in relation to category 2 conduct
If the manager is satisfied, on
reasonable grounds, that the AFP appointee has engaged in category 2 conduct,
the manager may do either or both of the following:
(a) take remedial action in relation
to the AFP appointee;
(b) take training and development
action in relation to the AFP appointee.
Note 1: For remedial action, see section 40TD.
Note 2: For training and development action,
see section 40TC.
40TK
AFP practices issue identified in course of dealing with AFP conduct issue
(1) This section applies if the manager is
satisfied that the information:
(a) given under section 40SA in
relation to the AFP conduct issue; or
(b) obtained in the course of dealing
with the AFP conduct issue;
raises an AFP practices issue.
(2) The manager must bring the AFP practices
issue to the attention of an appropriate AFP appointee.
(3) The manager may make such recommendations
as the manager considers appropriate to address the AFP practices issue.
Subdivision D—Dealing with category 3 conduct issues and corruption issues
40TL
When Subdivision applies
(1) This Subdivision applies if:
(a) information that is given under
section 40SA raises an AFP conduct issue in relation to an AFP appointee;
and
(b) the issue is a category 3 conduct
issue.
(2) This Subdivision also applies if:
(a) the Commissioner decides under
section 40SD that an AFP conduct issue in relation to an AFP appointee is
to be dealt with under this Part; and
(b) the issue is a category 3 conduct
issue.
(3) This Subdivision also applies if:
(a) the Commissioner notifies the
Integrity Commissioner of a corruption issue under section 19 of the Law
Enforcement Integrity Commissioner Act 2006 and the Australian Federal
Police investigates the issue under subsection 22(1) of that Act; or
(b) a corruption issue relates to the
conduct of an AFP appointee and the Integrity Commissioner refers the issue to
the Australian Federal Police under Division 2 of Part 4 of that Act.
(4) This Subdivision also applies if the
Ombudsman arranges with the Commissioner under section 8D of the Ombudsman
Act 1976 for a category 3 conduct issue to be dealt with jointly by the
Ombudsman and the Australian Federal Police.
40TM
Head of unit constituted under section 40RD to notify Ombudsman of
category 3 conduct issues
(1) The head of the unit constituted under
section 40RD must notify the Ombudsman of the issue if the issue is a
category 3 conduct issue.
(2) Subsection (1) does not apply if
this Subdivision applies to the issue because of subsection 40TL(4) (Ombudsman
arranging for issue to be dealt with jointly by Ombudsman and Australian
Federal Police).
40TN
Head of unit constituted under section 40RD generally allocates issues for
investigation
(1) Subject to section 40TO, the head of
the unit constituted under section 40RD must allocate the issue to a
person who is a member or special member for investigation.
(2) Without limiting subsection (1), the
head of the unit may allocate the issue to himself or herself.
(3) The head of the unit may allocate the
issue to a person who is not a member of the unit only with the Commissioner’s
agreement.
40TO
Commissioner must allocate issue to someone outside unit constituted under
section 40RD in certain circumstances
(1) This section applies if:
(a) the issue relates to the conduct
of a person who is a member of the unit constituted under section 40RD; or
(b) the issue does not relate to the
conduct of a person who is a member of the unit but the Commissioner is
satisfied that it would be inappropriate, for any reason, for the issue to be
allocated to a person who is a member of that unit for investigation.
(2) The Commissioner must allocate the issue
to a person for investigation.
(3) The person to whom the issue is allocated
must not be a member of the unit constituted under section 40RD.
(4) A corruption issue must not be allocated
to the Ombudsman.
(5) Without limiting subsection (2), the
Commissioner may, with the agreement of the Ombudsman, allocate the issue to
the Ombudsman if the issue is a category 3 conduct issue.
(6) If:
(a) the issue is a category 3 conduct
issue; and
(b) the Commissioner allocates the
issue under subsection (2) to someone other than the Ombudsman;
the Commissioner must consult with the Ombudsman about the
choice of the person to whom the issue is to be allocated.
(7) If the issue is a corruption issue, the
Commissioner must consult with the Integrity Commissioner about the choice of
the person to whom the issue is to be allocated.
40TP
Persons eligible to have category 3 conduct issue or corruption issue allocated
to them
The issue may be allocated to a person
under section 40TN or 40TO only if the person has appropriate qualifications
or experience to conduct the investigation of the issue.
40TQ
How category 3 conduct issue or corruption issue is dealt with
(1) This section applies if the issue is
allocated to a person under section 40TN or 40TO.
(2) In investigating the issue, the
investigator must:
(a) ensure that:
(i) the AFP appointee; and
(ii) the complainant (if
any);
have, subject to the
requirements of the investigation, an adequate opportunity to be heard in
relation to the issue; and
(b) consider whether the information:
(i) given under section 40SA
in relation to the issue; or
(ii) obtained in the course
of dealing with the issue;
raises an AFP practices issue.
40TR
Recommendations that may be made in relation to category 3 conduct or corrupt
conduct
(1) If the investigator is satisfied, on
reasonable grounds, that the AFP appointee has engaged in category 3 conduct or
corrupt conduct, the investigator may recommend that any one or more of the
following be taken in relation to the AFP appointee:
(a) termination action;
(b) remedial action;
(c) training and development action;
(d) any other action that the
Commissioner can take in relation to the AFP appointee.
Note 1: For termination action, see
section 40TE.
Note 2: For remedial action, see section 40TD.
Note 3: For training and development action,
see section 40TC.
Note 4: If evidence emerges, at any stage of the
investigation, that the AFP appointee may have committed an offence, the
investigator could also arrange for the AFP appointee to be charged with the
offence. This might be done even before the investigation of the issue is
completed. The AFP appointee might be charged with the offence even if the
investigator does not recommend that termination, remedial or training and
development action to be taken in relation to the AFP appointee.
(2) To avoid doubt, the Commissioner may take
termination action in relation to an AFP employee whether or not a
recommendation has been made by an investigator that termination action be
taken in relation to the employee.
40TS
Investigative powers
(1) If the investigator is not the Ombudsman,
the investigator has, in relation to the investigation of the issue, the powers
provided for in Division 5.
(2) To avoid doubt, subsection (1)
applies even if the investigator is investigating the issue jointly with the
Ombudsman.
(3) If the investigator is the Ombudsman, the
Ombudsman has, in relation to the investigation of the issue, the same powers
that the Ombudsman has under the Ombudsman Act 1976 in relation to the
investigation of a complaint made under that Act.
40TU
Report of investigation
(1) On completion of the investigation of the
issue, the investigator must:
(a) prepare a written report of the
results of the investigation; and
(b) give the report to:
(i) the head of the unit
constituted under section 40RD if the issue was allocated to the
investigator under section 40TN; or
(ii) the Commissioner if
the issue was allocated to the investigator under section 40TO.
(2) Subsection (1) does not apply if:
(a) the issue is investigated jointly
with the Ombudsman; and
(b) the arrangement under which the
joint investigation is conducted specifies that the Ombudsman is to lead the
investigation.
(3) Without limiting subsection (1), the
report prepared under that subsection must include any recommendations that the
investigator makes under section 40TR.
Note: See also section 40TW.
40TV
Taking action on report
The Commissioner must ensure that:
(a) any recommendations made in the
report under section 40TU are fully considered; and
(b) appropriate action is taken in
relation to the issue to which the report relates.
40TW
AFP practices issue identified in course of dealing with AFP conduct issue
(1) This section applies if:
(a) the investigator is satisfied that
the information:
(i) given under section 40SA
in relation to the issue; or
(ii) obtained in the course
of dealing with the issue;
raises an AFP practices issue;
and
(b) the investigator prepares a report
under section 40TU in relation to the investigation.
(2) The investigator:
(a) must identify the AFP practices
issue in the report; and
(b) may include in the report such
recommendations as the investigator considers appropriate to address the AFP
practices issue.
Subdivision E—Dealing with AFP practices issues
40TX
Commissioner to ensure that appropriate action is taken in relation to AFP
practices issue
(1) This section applies if:
(a) a person gives information under
section 40SA that raises an AFP practices issue; or
(b) an AFP practices issue is:
(i) brought, under section 40TK,
to the attention of an AFP appointee; or
(ii) identified, under
section 40TW, in a report prepared under section 40TU;
as a result of an AFP conduct
issue being dealt with under this Part.
(2) The Commissioner must ensure that
appropriate action is taken to have the issue dealt with.
Division 4—Ministerially directed inquiries
40UA
Minister may arrange special inquiries
(1) The Minister may, if he or she thinks it
appropriate to do so, arrange for an inquiry to be held, by such person or
persons, and in such manner, as he or she determines, concerning:
(a) any conduct engaged in by an AFP
appointee; or
(b) any matter relating to the
practices or procedures of the Australian Federal Police; or
(c) any other matter relating to the
Australian Federal Police.
(2) Subsection (1) applies even if:
(a) the conduct referred to in paragraph (1)(a)
is:
(i) being dealt with under
Division 3; or
(ii) the subject of a
complaint made to the Ombudsman; or
(b) the matter referred to in paragraph (1)(b)
is:
(i) a practice or
procedure that is being dealt with under Division 3; or
(ii) the subject of a
complaint made to the Ombudsman.
40UB
Minister to inform certain persons and bodies of inquiry
(1) If the Minister arranges under section 40UA
for an inquiry to be held into any conduct or other matter, the Minister must
inform the following of the inquiry:
(a) the Ombudsman;
(b) the Integrity Commissioner;
(c) such other persons or bodies as
the Minister considers appropriate.
(2) The Minister must inform those people,
and those bodies, of:
(a) the fact that the inquiry will be
held; and
(b) the conduct or matter into which
the inquiry is to be held; and
(c) the person or persons who are to
conduct the inquiry; and
(d) the manner in which the inquiry
will be held.
40UC
Division 3 investigation may be suspended pending outcome of inquiry
(1) This section applies if:
(a) the Minister arranges under
section 40UA for an inquiry to be held into conduct or a matter; and
(b) the conduct or matter is being
dealt with, or is about to be dealt with, under Division 3.
(2) The Commissioner may suspend further
action in relation to the conduct or matter under Division 3 until the
inquiry has been completed.
(3) If the Commissioner:
(a) receives a report in relation to
the inquiry; and
(b) is satisfied, having considered
that report, that it is appropriate to do so;
the Commissioner may terminate the investigation of the
conduct or matter under Division 3.
(4) If the conduct or matter is being dealt
with under Division 3 jointly by the Ombudsman and the Australian Federal
Police, the Commissioner may take action under subsection (2) or (3) only
after consulting the Ombudsman.
40UD
Reports of special inquiries
(1) If an inquiry is held in accordance with
arrangements made under section 40UA, the person holding the inquiry:
(a) must report to the Minister the
results of the inquiry; and
(b) may make such recommendations (if
any) arising out of the inquiry as the person considers appropriate.
(2) On receipt of a report of the results of
an inquiry held in accordance with arrangements made under section 40UA,
the Minister may cause such action to be taken, arising out of the Minister’s
consideration of the report, as he or she thinks fit.
(3) Without limiting subsection (2), the
Minister may do one or more of the following:
(a) give a copy of the report to the
Commissioner;
(b) give a copy of the report to the
Ombudsman;
(c) give a copy of the report to the
Integrity Commissioner;
(d) recommend to the Commissioner that
the Commissioner consider directing that training and development action be
taken in relation to an AFP appointee;
(e) recommend to the Commissioner that
the Commissioner consider directing that remedial action be taken in relation
to an AFP appointee;
(f) recommend to the Commissioner
that the Commissioner consider directing that termination action be taken in
relation to an AFP appointee;
(g) recommend that an AFP appointee be
charged with a criminal offence;
(h) refer a corruption issue in
relation to an AFP appointee to the Integrity Commissioner.
Division 5—Investigative powers
40VA
Application of Division
(1) This Division applies if a person (the investigator):
(a) is investigating a category 3
conduct issue or a corruption issue under Division 3; or
(b) is conducting an inquiry under
Division 4.
(2) The powers provided for in this Division
are in addition to any other powers the investigator may have.
Note: For example, if the investigator is a member,
or special member, of the Australian Federal Police and the investigation or
inquiry involves a possible criminal offence against a law of the Commonwealth,
the investigator may have powers in relation to the investigation of offences
against the laws of the Commonwealth.
40VB
Manner of conducting investigation or inquiry
(1) The investigation or inquiry is to be
conducted, subject to this Division, in such manner as the investigator thinks
fit.
(2) If the Ombudsman makes an arrangement
with the Commissioner under section 8D of the Ombudsman Act 1976 in
relation to the investigation of the issue, the investigator must:
(a) investigate the issue jointly with
the Ombudsman; and
(b) investigate the issue in
accordance with the arrangement.
(3) If:
(a) the investigator is investigating
a category 3 conduct issue or a corruption issue; and
(b) the head of the unit constituted
under section 40RD allocated the issue to the investigator;
the head of that unit may give the investigator directions
as to the manner in which the investigation is to be conducted and the
investigator must comply with those directions.
(4) Subsection (3) has effect subject to
subsection (2).
(5) If:
(a) the investigator is investigating
a category 3 conduct issue or a corruption issue; and
(b) the Commissioner allocated the
issue to the investigator;
the Commissioner may give the investigator directions as
to the manner in which the investigation is to be conducted and the
investigator must comply with those directions.
(6) Subsection (5) has effect subject to
subsection (2).
(7) If the investigator is conducting an
inquiry under Division 4, the Minister may give the investigator
directions as to the manner in which the investigation is to be conducted and the
investigator must comply with those directions.
(8) A direction given to the investigator
under subsection (3), (5) or (7) is not a legislative instrument.
40VC
Obtaining information and making inquiries
(1) For the purposes of the investigation or inquiry,
the investigator may obtain information from such persons, and make such
inquiries, as he or she thinks fit.
(2) Subsection (1) has effect subject to
this Division.
40VD
Relationship with other laws
(1) Sections 40VB and 40VC do not
authorise an AFP appointee to contravene, or fail to comply with, a law that
would, if those sections had not been enacted, apply in relation to the
investigation or inquiry.
(2) Nothing in subsection (1) affects
the operation of any other provision of this Division.
40VE
Directions to AFP appointee
Investigator may give directions to AFP appointee
(1) The investigator may, for the purposes of
the investigation or inquiry, direct an AFP appointee:
(a) to give the investigator
information (in the manner and form specified in the direction); or
(b) to produce to the investigator a
document, record or thing; or
(c) to answer a question; or
(d) to do anything else that is
reasonably necessary for the purposes of obtaining evidence in relation to the
investigation or inquiry.
Note: Failure to comply with the direction is an
offence against subsection 40VH(1).
(2) A direction under subsection (1) has
no effect unless the investigator:
(a) states in the direction that the
AFP appointee to whom the direction is given is being expressly directed under
that subsection; and
(b) specifies in the direction the
substance of the subject matter of the investigation or inquiry; and
(c) if it is practicable to do
so—gives the direction in writing; and
(d) if the direction is given in
writing—gives the AFP appointee a copy of the direction.
Obligation to comply with direction
(3) If an AFP appointee is directed under subsection (1)
to give information, produce a document, record or thing, answer a question or
do something else for the purposes of obtaining evidence, the AFP appointee is
not excused from complying with the direction:
(a) on the ground that complying with
the direction:
(i) would be contrary to
the public interest; or
(ii) might make him or her
liable to a penalty; or
(b) on the ground that the
information, the production of the document, record or thing, the answer to the
question or the evidence obtained by doing that thing might tend to incriminate
him or her; or
(c) on any other ground.
Use to which information etc. may be put
(4) The information, the production of the
document, record or thing, the answer to the question or the evidence obtained
by doing that thing, is not admissible in evidence against the AFP appointee in
any civil or criminal proceedings other than:
(a) proceedings for an offence against
subsection 40VH(1); or
(b) proceedings in relation to
termination action taken in relation to the AFP appointee; or
(c) proceedings under the Safety,
Rehabilitation and Compensation Act 1988; or
(d) proceedings in tort that the AFP
appointee institutes against the Commonwealth.
(5) Nothing in subsection (4) is taken
to affect the admissibility in evidence, in any civil or criminal proceedings,
of:
(a) any information given by an AFP
appointee to the investigator; or
(b) the production of a document,
record or thing by an AFP appointee to the investigator; or
(c) an answer given by an AFP
appointee to a question put to him or her by the investigator; or
(d) evidence obtained by an AFP
appointee doing something for the purposes of obtaining evidence at the request
of the investigator;
if the AFP appointee has not been expressly directed,
under subsection (1), to give the information, to produce the document,
record or thing, to answer the question or to do that thing.
(6) If a document, record or thing is
produced to the investigator under a direction under subsection (1), the
investigator may:
(a) examine the document, record or
other thing; and
(b) retain possession of the document,
record or other thing for such period as is necessary for the purposes of the
investigation or inquiry.
If the investigator retains possession of a document,
record or thing under paragraph (b) during a particular period, the
investigator must allow a person who would be entitled to inspect the document,
record or thing if it was not in the investigator’s possession to inspect the
document, record or thing at all reasonable times.
(7) If a document or record is produced to
the investigator under a direction under subsection (1), the investigator
may take extracts from, or a copy of, the document or record.
(8) For all the purposes of this Act, and the
regulations in force under this Act, a direction given by the investigator
under subsection (1) has effect as if it had been given by the
Commissioner.
(9) An AFP appointee is not liable to any
penalty (other than a penalty under this Act) merely because the appointee:
(a) gives information; or
(b) produces a document, record or
thing; or
(c) answers a question; or
(d) does something else;
when directed to do so by the investigator under this
section.
Direction is not a legislative instrument
(10) If a direction given by an investigator
under subsection (1) is in writing, the direction is not a legislative
instrument.
40VF
Entering and searching AFP premises
(1) For the purposes of the investigation or
inquiry, the investigator may:
(a) enter, at any time, premises
occupied by the Australian Federal Police; and
(b) carry on the investigation or
inquiry on those premises; and
(c) search those premises; and
(d) examine any document, record or
other thing that is on those premises and that is relevant to the investigation
or inquiry; and
(e) take extracts from, or a copy of,
any document or record that is on those premises and that is relevant to the
investigation or inquiry; and
(f) retain possession of the
document, record or thing for such period as is necessary for the purposes of
the investigation or inquiry.
(2) If the investigator retains possession of
a document, record or thing under paragraph (1)(f) during a particular
period, the investigator must allow a person who would be entitled to inspect
the document, record or thing, if it was not in the investigator’s possession,
to inspect the document, record or thing at all reasonable times.
(3) The document, record or thing referred to
in paragraph (1)(d), (e) or (f) need not be one that is being used by the
Australian Federal Police.
(4) In this section:
premises includes a place, vehicle, vessel
and aircraft.
40VG
Special powers if investigator conducting inquiry under Division 4
Section applies to inquiries
(1) This section applies if the investigator
is conducting an inquiry under Division 4.
Investigator may give direction
(2) For the purposes of the inquiry, the
investigator may:
(a) direct an AFP appointee to attend
before him or her at the time and place specified in the direction and to
answer questions relevant to the inquiry when the AFP appointee attends; and
(b) administer an oath or affirmation
to the AFP appointee; and
(c) examine the AFP appointee on oath
or affirmation; and
(d) by means of sound recording
apparatus or otherwise, make a record of any information furnished, or answer
given, in compliance with such a direction or cause such a record to be made.
Note: Failure to comply with a direction under paragraph (a),
or to be sworn or make an affirmation under paragraph (b), is an offence
(see subsection 40VH(1)).
(3) A direction under subsection (2) has
no effect unless the investigator:
(a) states in the direction that the
AFP appointee to whom the direction is given is being expressly directed under
that subsection; and
(b) specifies in the direction the
substance of the subject matter of the inquiry; and
(c) if it is practicable to do
so—gives the direction in writing; and
(d) if the direction is given in
writing—gives the AFP appointee a copy of the direction.
Obligation to comply with direction
(4) If an AFP appointee is directed under subsection (2)
to answer a question, the AFP appointee is not excused from complying with the
direction:
(a) on the ground that answering the
question:
(i) would be contrary to
the public interest; or
(ii) might make him or her
liable to a penalty; or
(b) on the ground that the answer to
the question might tend to incriminate him or her; or
(c) on any other ground.
Use to which answer may be put
(5) The answer to the question is not
admissible in evidence against the AFP appointee in any civil or criminal
proceedings other than:
(a) proceedings for an offence against
subsection 40VH(1); or
(b) proceedings in relation to
termination action taken in relation to the AFP appointee; or
(c) proceedings under the Safety,
Rehabilitation and Compensation Act 1988; or
(d) proceedings in tort that the AFP
appointee institutes against the Commonwealth.
(6) Nothing in subsection (5) is taken
to affect the admissibility in evidence, in any civil or criminal proceedings,
of an answer given by an AFP appointee to a question put to him or her by the
investigator if the AFP appointee has not been expressly directed, under subsection (2),
to answer the question.
Direction has same effect as if given by Commissioner
(7) For all the purposes of this Act, and the
regulations in force under this Act, a direction given by the investigator
under subsection (2) has effect as if it had been given by the
Commissioner.
AFP appointee not liable to penalty for answering
question
(8) An AFP appointee is not liable to any
penalty (other than a penalty for an offence against subsection 40VH(1)) under
the provisions of any other law because the AFP appointee answers a question
when directed to do so by the investigator under subsection (2).
Direction is not a legislative instrument
(10) If a direction given by an investigator
under subsection (2) is in writing, the direction is not a legislative
instrument.
40VH
Offences
(1) An AFP appointee commits an offence if
the AFP appointee:
(a) refuses or fails to comply with a
direction given under subsection 40VE(1) or 40VG(2); or
(b) refuses or fails to be sworn or
make an affirmation, when required to do so under subsection 40VG(2); or
(c) gives information or makes a
statement to the investigator knowing that it is false or misleading in a
material particular.
Penalty: Imprisonment for 6 months.
(2) Subsection (1) does not apply if the
AFP appointee has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) In any proceedings for an offence against
subsection (1), the prosecution bears the onus of proving that:
(a) the investigator complied with
subsection 40VE(2) in relation to a direction under subsection 40VE(1); or
(b) the investigator complied with
subsection 40VG(3) in relation to a direction under subsection 40VG(2).
Division 6—Record keeping
40WA
Record keeping
(1) The Commissioner must ensure that
adequate records are kept for the purposes of this Part.
(2) Without limiting subsection (1), the
Commissioner must ensure that records are kept of:
(a) information that is given under
section 40SA; and
(b) the action (if any) that is taken
in relation to the AFP conduct or practices issue raised by that information;
and
(c) if the issue is an AFP conduct issue—the
action (if any) that is taken in relation to any AFP practices issue that is:
(i) brought, under section 40TK,
to the attention of an AFP appointee; or
(ii) identified, under
section 40TW, in a report prepared under section 40TU;
as a result of the AFP conduct
issue being dealt with under this Part.
(3) Subsection (2) does not apply if
subsection 40SC(2) (which deals with category 1 conduct issues that are
resolved without being recorded) applies to the information.
(4) The Integrity Commissioner is entitled to
have access to the records kept under this section for the purposes of
performing the Integrity Commissioner’s functions.
(5) Without limiting section 40XC, the
Ombudsman is entitled to have access to the records kept under this section for
the purposes of performing the Ombudsman’s functions.
40WB
Records about corruption issues
(1) The Integrity Commissioner may direct the
Commissioner that access to information about a corruption issue is to be
restricted in the way specified in the direction.
Note: For example, the Integrity Commissioner might
direct that the information that would otherwise be entered on a database is
not to be entered on the database or that, if the information is entered on a
database, access to the information on the database is to be restricted in some
way.
(2) The Commissioner must comply with the
direction.
Division 7—Ombudsman review
40XA
Annual reviews by Ombudsman
(1) For the purposes of this section, the review
periods are:
(a) the period of 12 months commencing
on the day on which the Law Enforcement (AFP Professional Standards and
Related Measures) Act 2006 commences; and
(b) each succeeding period of 12
months.
(2) At least once in each review period, the
Ombudsman must, for the purposes of reviewing the administration of this Part
during that period, inspect the records of AFP conduct issues and AFP practices
issues that have been, or are being, dealt with under Divisions 3 and 4
during that period.
40XB
Ad hoc reviews by Ombudsman
The Ombudsman may, at any time, inspect
the records of AFP conduct issues and AFP practices issues dealt with under
Divisions 3 and 4 for the purposes of reviewing the administration of this
Part.
40XC
Commissioner to provide information and access to documents
For the purposes of a review conducted
under section 40XA or 40XB, the Ombudsman may require the Commissioner to
give the Ombudsman the information, and the access to documents, that the
Ombudsman requests.
40XD
Annual reports by Ombudsman
(1) The Ombudsman must, as soon as
practicable after 30 June each year, prepare a report of the Ombudsman’s
work and activities under this Division during the preceding 12 months and give
copies of the report to the President of the Senate and the Speaker of the
House of Representatives for presentation to the Senate and the House of
Representatives, respectively.
(2) The report must include comments as to
the comprehensiveness and adequacy of the administration of matters under
Divisions 3 and 4.
Division 8—Offences
40YA
Victimisation
(1) A person commits an offence if the person
causes, or threatens to cause, detriment to another person (the victim)
on the ground that the victim, or any other person:
(a) has given, or may give,
information under this Part; or
(b) has produced, or may produce, a
document, record or thing to a person under this Part.
Penalty: Imprisonment for 6 months.
(2) For the purposes of subsection (1),
a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(3) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the person threatened actually feared that
the threat would be carried out.
40YB
Providing false information about AFP conduct or practices issues
A person commits an offence if:
(a) the person:
(i) gives information
under section 40SA that raises an AFP conduct or practices issue; or
(ii) otherwise gives an AFP
appointee information in relation to an AFP conduct or practices issue; and
(b) the person knows that the information
is false in a material particular.
Penalty: 20 penalty units.
40YC
AFP appointees to provide name, etc.
An AFP appointee commits an
offence if:
(a) a person requests the AFP
appointee to give the person any of the following:
(i) his or her name;
(ii) the address of his or
her place of duty;
(iii) his or her
identification number if her or she has an identification number; and
(b) the person informs the AFP
appointee, either expressly or by necessary implication, that the person:
(i) is complaining, or
proposes to complain, about action taken by that AFP appointee; or
(ii) is giving information,
or proposed to give information, under section 40SA about an AFP conduct
issue that relates to conduct engaged in by that AFP appointee; and
(c) the AFP appointee:
(i) refuses or fails,
without reasonable excuse, to comply with the request; or
(ii) gives the person a
name, address or identification number that is false in a material particular.
Penalty: 5 penalty units.
Division 9—Secrecy
40ZA Secrecy
(1) This section applies to a person (other
than an AFP appointee or the Ombudsman) who conducts:
(a) an investigation of a category 3
conduct issue or a corruption issue under Subdivision D of Division 3; or
(b) an inquiry under Division 4.
Note 1: AFP appointees are covered by the
confidentiality requirements of section 60A.
Note 2: The Ombudsman is covered by the confidentiality
requirements of section 35 of the Ombudsman Act 1976.
(2) A person who is, or has been, a person to
whom this section applies commits an offence if:
(a) the person (either directly or
indirectly and either while he or she is, or after he or she has ceased to be,
a person to whom this section applies):
(i) makes a record of
information; or
(ii) divulges or
communicates information; and
(b) the information was given to, or
obtained by, the person in the course of, or for the purposes of, the
investigation or inquiry.
Penalty: 30 penalty units.
(3) Subsection (2) has effect subject to
subsections (4), (5) and (6).
(4) Subsection (2) does not prevent a
person who is, or has been, a person to whom this section applies from making a
record of, or divulging or communicating, information for the purposes of the
investigation or inquiry.
(5) Subsection (2) does not prevent a
person who is, or has been, a person to whom this section applies from making a
record of, or divulging or communicating, information with the written consent
of the appropriate person.
(6) Subsection (2) does not prevent a
person from producing a record, or giving information, in evidence before a
court.
(7) For the purposes of this section, the appropriate
person is:
(a) the Minister in relation to a
person who is conducting, or has conducted, an inquiry under Division 4;
and
(b) the Commissioner in relation to
any other person to whom this section applies.
Part VA—Loss of certain superannuation rights and benefits
Division 1—Introductory
41
Definitions
In this part:
abscond has the meaning given in section 42A.
appropriate court means:
(a) in relation to a person’s
conviction of an offence—the court of the State or Territory before which the
person was convicted and, in addition, where that court is not the Supreme
Court of the State or Territory, that Supreme Court; and
(b) in relation to the charging, or
proposed charging, of a person with an offence—the Supreme Court of the State
or Territory in which the person has been, or is to be, charged with the
offence.
benefit means any benefit payable under a
superannuation scheme, including a lump sum payment and a pension.
changeover day means the day on which
Schedule 1 to the Australian Federal Police Legislation Amendment Act
1999 commences.
commencing day means the day on which this
Part commences.
Commonwealth organisation means:
(a) a body corporate incorporated for
a public purpose (whether before, on or after the commencing day) by a law of
the Commonwealth or of a Territory; or
(b) a body corporate:
(i) incorporated (whether
before, on or after the commencing day) under a law of the Commonwealth or a
law in force in a State or Territory; and
(ii) in which the
Commonwealth or a body corporate mentioned in paragraph (a) has the
controlling interest; or
(c) a body corporate, whether
incorporated before, on or after the commencing day:
(i) that is a subsidiary
of another body corporate mentioned in paragraph (a) or (b); and
(ii) in which that other
body corporate has the controlling interest; or
(d) an unincorporated authority or
body (other than a prescribed authority or body) established for a public
purpose (whether before, on or after the commencing day) by or under a law of
the Commonwealth, of a Territory or of the Northern Territory; or
(e) any other incorporated or
unincorporated authority or body (however established), other than a prescribed
authority or body, that is wholly or substantially financed, either directly or
indirectly, by the Commonwealth, whether the authority or body was or is
established before, on or after the commencing day.
controlling interest, in relation to a body
corporate, means an interest that derives from ownership of at least 50% of the
shares in the body corporate that confer voting rights.
convicted has the meaning given in section 42C.
corruption offence means an offence by a
person who was an AFP employee or an old law member or staff member at the time
when it was committed, being an offence:
(a) whose commission involved an abuse
by the person of his or her office as such a person;
(b) that, having regard to the powers
and duties of such a person, as the case may be, was committed for a purpose
that involved corruption; or
(c) that was committed for the purpose
of perverting, or attempting to pervert, the course of justice.
defendant, in Division 3A, has the
meaning given in section 49A.
DPP means the Director of Public
Prosecutions.
employee contributions, in relation to a
person, includes:
(a) any amount paid or transferred
into a fund, being an amount that is, under the person’s superannuation scheme,
to be taken to be employee contributions; and
(b) any other amount paid or
transferred into a fund under the person’s superannuation scheme, being an
amount:
(i) attributable to
employer contributions paid by the person’s previous employer under another
superannuation scheme (not being a superannuation scheme within the meaning of
this Act) applicable to the person’s previous employment by that employer; and
(ii) payable to the person
as an additional lump sum benefit on his or her resignation or retirement.
encumbrance, in relation to property,
includes any interest, mortgage, charge, right, claim or demand in respect of
the property.
fund includes the Consolidated Revenue Fund.
interest, in relation to property, means:
(a) a legal or equitable estate or
interest in the property; or
(b) a right, power or privilege in
connection with the property;
whether present or future and whether vested or
contingent.
member, in relation to a superannuation
scheme, includes a person who is eligible for a benefit (including a deferred
benefit) under the scheme.
offence means:
(a) a common law offence; or
(b) an offence against a law of the
Commonwealth or of a State or Territory, being an offence punishable by
imprisonment for life or for a term longer than 12 months.
old law member or staff member has the meaning
given by section 41A.
property means real or personal property of
every description, whether situated in Australia or anywhere else and whether
tangible or intangible, and includes an interest in any such real or personal
property.
recovery order means a superannuation order
containing an order of the kind mentioned in subsection 46(4) or (4A).
relevant period, in relation to a restraining
order, means the period starting on the day when the order was made and ending:
(a) if an order or orders have been
made under section 49Q—at the time, or on the occurrence of the event,
specified in the order, or the last of the orders, so made; or
(b) if paragraph (a) does not
apply but an order or orders have been made under paragraph 49J(1)(a) or (b) in
relation to the restraining order—at the end of 6 months after the day when the
order, or the last of the orders, was so made, or such longer period (if any)
as is specified in the order, or the last of the orders; or
(c) in any other case—at the end of 6
months after the day on which the restraining order was made, or such longer
period (if any) as is specified in the order.
restraining order means an order under
section 49B.
sentence includes a suspended sentence, but
does not include a sentence passed, or an order made, under subsection 20AB(1)
of the Crimes Act 1914.
superannuation
authority means:
(a) in
relation to the superannuation scheme established by the Superannuation Act
1976:
(i) for those matters
under that Act for which the Commonwealth Superannuation Board of Trustees No. 2
is responsible—that Board; and
(ii) for any other matters
under that Act—the Commissioner for Superannuation; or
(ab) in relation to the superannuation
scheme established by deed under the Superannuation Act 1990—the Commonwealth
Superannuation Board of Trustees No. 1; or
(b) in any other case—the person
(however described) responsible for the administration of the relevant
superannuation scheme.
superannuation order means an order under
section 46, and includes such an order as varied under section 47A.
superannuation scheme, in relation to a
person, means a superannuation scheme (other than a scheme established under a
law of a State or Territory) under which employer contributions or benefits are
paid or payable, or have at any time been paid, by the Commonwealth or a
Commonwealth organisation to or in respect of the person, and includes any
scheme or organisation under which such contributions are vested in the person.
41A
Old law members or staff members
For the purposes of this Part, if at a
particular time before the changeover day a person was a member or staff member
(within the meaning of this Act as in force at that time), the person was an
old law member or staff member at that time.
42
Related offences
For the purposes of this Act, 2 offences
are related to each other if the elements of the offences are substantially the
same acts or omissions.
42A
Abscond
For the purposes of this Part, other
than subsection 46(2), a person is to be taken to abscond in connection with an
offence if and only if:
(a) the person is charged with the
offence; and
(b) a warrant for the arrest of the
person is issued in relation to that information; and
(c) one of the following happens:
(i) at the end of the
period of 6 months starting on the day on which the warrant is issued:
(A) the
person cannot be found; or
(B) the
person is, for any other reason, not amenable to justice and, if the person is
outside Australia, extradition proceedings are not on foot;
(ii) at the end of the
period of 6 months starting on the day on which the warrant is issued:
(A) the
person is not amenable to justice because he or she is outside Australia; and
(B) extradition
proceedings are on foot;
and those proceedings
later end without an order for the person’s extradition.
42B
Charge with offence
A reference in this Part to a person
being charged with an offence is a reference to an information being laid
against the person for the offence, whether or not:
(a) a summons has been issued requiring
the attendance of the person to answer the information; or
(b) a warrant for the arrest of the
person has been issued.
42C
Conviction and quashing of conviction
(1) For the purposes of this Part, a person
is to be taken to be convicted of an offence if:
(a) the person is convicted of the
offence, whether summarily or on indictment; or
(b) the person absconds in connection
with the offence.
(2) For the
purposes of this Part, a person is to be taken to have been convicted of an
offence in a particular State or Territory if:
(a) where paragraph (1)(a)
applies—the person was convicted of the offence in a court in that State or
Territory; or
(b) where paragraph (1)(b)
applies—the information relating to the offence was laid in that State or
Territory.
(3) For the purposes of this Part, where a
person is to be taken to have been convicted of an offence in a particular
State or Territory because of paragraph (2)(b), the person is to be taken
to have been so convicted before the Supreme Court of that State or Territory.
(4) For the purposes of this Part, a person’s
conviction of an offence is to be taken to be quashed:
(a) where paragraph (1)(a)
applies—if the conviction is quashed or set aside; or
(b) where paragraph (1)(b)
applies—if, after the person is brought before a court in respect of the
offence, the person is discharged in respect of the offence or a conviction of
the person for the offence is quashed or set aside.
(5) A reference in this Part, in relation to
a person’s conviction of an offence, to the commission of the offence is, where
paragraph (1)(b) applies, a reference to the alleged commission of the
offence by the person.
42D
Property of a person
(1) For the purpose of making a restraining
order against the property of a person, that property is to be taken to include
property in which the person has a beneficial interest.
(2) For the purpose of making a restraining
order against the property of a person who is a defendant within the meaning of
Division 3A, that property is to be taken to include:
(a) any property of the person that
has been transferred by way of gift to another person within 2 years
immediately before the day on which the restraining order is made or the day on
which the person is charged with the relevant offence, whichever is the first
to happen; or
(b) where property of the person has
been transferred to another person within that period for a consideration whose
value is less than the commercial value of the property when the transfer was
made—an interest in the property equal to the proportion worked out using the
formula:
where:
VP (value of
the property) is the number of dollars in the commercial value of the
property when the transfer was made.
VC (value of
consideration) is the number of dollars in the value of the
consideration for the transfer when the transfer was made.
(3) Property that is to be taken to be
property of a person under subsection (1) is available to satisfy a
recovery order made against the person, whether or not a restraining order has
been made against the property.
(4) Property that is to be taken to be
property of a person under subsection (2) is available to satisfy a
recovery order made against the person if, and only if, a restraining order has
been made against the property.
42E
Dealing with property
For the purposes of this Part, dealing
with property of a person includes:
(a) if a debt owing by the person is
secured by an encumbrance on the property—incurring any further liability or
increasing the amount of the debt by any means; and
(b) removing the property from Australia;
and
(c) receiving or making a gift of the
property.
42F
Effective control of property
(1) Property may be subject to the effective
control of a person within the meaning of this Part, whether or not the person
has an interest in the property.
(2) Without limiting the generality of any
other provision of this Part, in determining:
(a) whether or not property is subject
to the effective control of a person; or
(b) whether or not there are reasonable
grounds to believe that property is subject to the effective control of a
person;
regard may be had to:
(c) shareholdings in, debentures over
or directorships of a company that has an interest (whether direct or indirect)
in the property; and
(d) a trust that has a relationship to
the property; and
(e) family, domestic and business
relationships between persons having an interest in the property, or in
companies of the kind mentioned in paragraph (c) or trusts of the kind
mentioned in paragraph (d), and other persons.
42G
Sufficient consideration
A reference in this Part to transferring
or acquiring property, or an interest in property, for sufficient consideration
is a reference to transferring or acquiring the property or interest for a
consideration that is sufficient and, having regard solely to commercial
considerations, reflects the value of the property or the interest.
42H
Application of Part to convictions and offences
(1) This Part does not apply to a person’s
conviction of an offence if the conviction happened before the commencing day.
(2) This Part applies to an offence
committed, or believed to have been committed, at any time, whether before, on
or after the commencing day.
42J
Crown bound
(1) This Part binds the Crown in right of the
Commonwealth, of each of the States, of the Australian Capital Territory, of
the Northern Territory and of Norfolk Island.
(2) Nothing in this Part renders the Crown
liable to be prosecuted for an offence.
Division 2—Loss of superannuation: corruption offences
43
Notice of charge etc.
(1) Where:
(a) either:
(i) a person who is or was
an AFP employee is charged with an offence; or
(ii) a person who was an
old law member or staff member at any time is charged with an offence; and
(b) the Commissioner considers that
the offence is, or may be, a corruption offence;
the Commissioner shall notify the Minister in writing of
the charge.
(2) A notice shall contain particulars of the
charge and set out the reasons why the Commissioner considers that the offence
is, or may be, a corruption offence.
(3) Where the Commissioner notifies the
Minister that a person has been charged with an offence, the Commissioner shall
notify the Minister in writing if:
(a) the person is acquitted or
convicted of the offence; or
(b) the charge is withdrawn or
otherwise disposed of without the conviction of the person.
44
Authority to apply for superannuation order
Where:
(a) either:
(i) a person who is or was
an AFP employee is convicted of an offence; or
(ii) a person who was an
old law member or staff member at any time is convicted of an offence; and
(b) the Minister is of the opinion
that the offence is a corruption offence;
the Minister shall, by notice in writing, authorise the
DPP to apply to the appropriate court for a superannuation order in respect of
the person.
45
Application for superannuation order
(1) If the DPP is authorised to apply for a
superannuation order in respect of a person who is taken to have been convicted
of an offence because of paragraph 42C(1)(b), the DPP must make that
application to the appropriate court.
(1A) If:
(a) the DPP is authorised to apply for
a superannuation order in respect of a person who is convicted of 1 or more
offences; and
(b) the person is sentenced to
imprisonment for life in respect of the offence, or any of the offences, or:
(i) if there is only 1
offence—to imprisonment for a term longer than 12 months; or
(ii) if there are 2 or more
offences—to imprisonment for a single term longer than 12 months, or to cumulative
terms that together add up to longer than 12 months, in respect of all or any
of them;
the DPP must make that application to the appropriate
court.
(2) The DPP must not make an application for
a superannuation order otherwise than under this section.
(3) The DPP must take reasonable steps to
give written notice of an application to the person in respect of whom the
superannuation order is sought.
45A
Application for superannuation order: evidence
(1) In determining an application for a
superannuation order in respect of a person, the appropriate court may have
regard to the transcript of any proceedings against the person for the offence
to which the application relates and to the evidence given in any such
proceedings.
(2) In an application for a superannuation
order, any finding of fact made by a court in any proceedings for the offence
to which the application relates, is prima facie evidence of that fact
and the finding may be proved by the production of documents, under the seal of
the court, in which the finding appears.
(3) In an application for a superannuation
order in respect of a person, a certificate signed or sealed by the person’s
superannuation authority:
(a) stating that employer
contributions or benefits made or payable by the Commonwealth or a specified
Commonwealth organisation in respect of the person are held in a specified fund
under the relevant superannuation scheme; and
(b) stating the amount that equals the
sum of those contributions or benefits as at the specified day plus the amount
of interest on those contributions or benefits accrued under the scheme before
that day;
is prima facie evidence of the matters stated in
the certificate.
(4) In an application for a superannuation
order in respect of the person, a certificate signed or sealed by the person’s
superannuation authority:
(a) stating that benefits have been
paid to the person under the relevant superannuation scheme; and
(b) stating the amount that equals the
sum of the benefits so paid as at the specified day; and
(c) stating another amount that equals
the part of the amount mentioned in paragraph (b) that is attributable to
the sum of the employee contributions paid under the scheme by the person as at
the specified day plus the amount of interest on those contributions accrued
under the scheme before that day;
is prima facie evidence of the matters stated in
the certificate.
(5) A document purporting to be sealed with
the seal of a court is to be taken to have been lawfully sealed with the seal
of that court unless the contrary is proved.
(6) A document
purporting to be signed or sealed by a person’s superannuation authority is to
be taken to have been signed or duly sealed by that superannuation authority
unless the contrary is proved.
46
Superannuation orders
(1) Subject to subsection (2), where an
application is made to an appropriate court for a superannuation order in
respect of a person, the court shall, if satisfied that the offence to which
the application relates is a corruption offence, by order, declare that:
(a) the person was convicted of a
corruption offence; and
(b) this Part applies in relation to:
(i) the rights of, and
benefits paid or payable to or in respect of, the person under any
superannuation scheme; and
(ii) any entitlement of the
person to receive an adjustment payment.
(2) Where a person is, because of paragraph
42C(1)(b), to be taken to have been convicted of an offence, a court must not
make a superannuation order in relation to the person unless the court is also
satisfied, on the balance of probabilities, that the person has absconded and:
(a) the person has been committed for
trial for the offence; or
(b) the court is satisfied, having
regard to all the evidence before it, that a reasonable jury, properly
instructed, could lawfully find the person guilty of the offence.
(3) Where:
(a) employer contributions or benefits
made or payable by the Commonwealth or a Commonwealth organisation in respect
of the person under any superannuation scheme have been paid into, and are held
in, a fund under the scheme; and
(b) the person would, but for
subsection 47(1), become entitled, subject to and in accordance with the
scheme, to the benefit, or to a benefit attributable to the employer
contributions, as the case may be;
the court must:
(c) work out, and specify in the
superannuation order, the amount that it thinks reflects the value of the sum
of those contributions or benefits as at the day on which the order is made,
plus the interest on those contributions or benefits accrued under the scheme
before that day; and
(d) include in the superannuation
order an order that the amount so specified be paid to the Commonwealth or
Commonwealth organisation, whichever the court considers appropriate.
(4) Where any benefits have been paid to the
person under any superannuation scheme (whether before, on or after the
commencing day) the court must:
(a) specify
in the superannuation order the amount worked out using the formula:
where:
AB (amount of
benefits) is the amount that the court thinks reflects the value of the
sum of the benefits paid by the Commonwealth or Commonwealth
organisation to the person under the scheme as at the day on which the order is
made.
EC (employee
contributions) is an amount that the court thinks is equal to the part
of AB that is attributable to the sum of the employee
contributions paid under the scheme by the person as at that day plus the
interest on those contributions accrued under the scheme before that day; and
(b) include in the superannuation order
an order that the person pay the amount so specified to the Commonwealth or
Commonwealth organisation, whichever the court considers appropriate.
(4A) Where the person has received an adjustment
payment, the court must:
(a) work out, and specify in the
superannuation order, the amount that it thinks reflects the value of the
amount of the payment as at the day on which the order is made; and
(b) include in the superannuation
order an order that the person pay the amount so specified to the Commonwealth.
(5) For the purposes of subsection (4),
the value of an amount of employer contributions or benefits, and of accrued
interest, is their value worked out having regard to any decline in the
purchasing power of money between the day on which the contributions or
benefits were made or paid, or the interest accrued, as the case may be, and
the day as at which their value must be worked out.
(5A) For the purposes of subsection (4A),
the value of an amount of an adjustment payment is its value worked out having
regard to any decline in the purchasing power of money between the day on which
the amount was paid and the day as at which its value must be worked out.
(6) The DPP must give written notice of a
superannuation order to the person’s superannuation authority.
46A
When does a superannuation order take effect?
(1) A superannuation order made in relation
to a person who has absconded takes effect on the day on which it is made.
(2) A superannuation order made in relation
to a person, other than a person who has absconded, does not take effect until:
(a) the end of the period (if any)
allowed for appealing against the conviction or sentence under the relevant
Commonwealth, State or Territory law; or
(b) if the person appeals against his
or her conviction or sentence, or both—the appeal, and any proceedings
resulting from it, are finally determined, withdrawn or otherwise disposed of.
47
Effect of superannuation order
(1) Where a court makes a superannuation
order in respect of a person:
(a) all rights of, and benefits
payable to or in respect of, the person or a dependant of the person (being
rights or benefits arising out of the person’s membership of any superannuation
scheme) cease, or cease to be payable, on the day on which the order takes
effect and the person ceases to be a member of the scheme on that day; and
(aa) any entitlement of the person to
an adjustment payment ceases on that day and an adjustment payment is not
payable to the person on or after that day; and
(b) any amount of the kind mentioned
in subsection 46(3) that is vested in the person ceases to be so vested on that
day; and
(c) the Commonwealth or a Commonwealth
organisation is not liable to pay any employer contribution or benefit under
the scheme in respect of the person on or after that day.
(1A) An amount payable by a person to the
Commonwealth or a Commonwealth organisation under a superannuation order is a
debt due by the person to the Commonwealth or the Commonwealth organisation, as
the case may be.
(1B) An order under subsection 46(3), (4) or
(4A) against a person may be enforced as if it were an order made in civil
proceedings instituted by the Commonwealth or the relevant Commonwealth
organisation against the person to recover a debt due by the person to the
Commonwealth or the Commonwealth organisation, and the debt arising from the
order is to be taken to be a judgment debt.
(2) Despite the Superannuation Act, or any
other Act or any agreement, where subsection (1) applies to a person who
is an AFP employee, the person is entitled, on the day on which he or she
ceases to be a member of the relevant superannuation scheme, to payment of an
amount equal to the sum of the employee contributions paid under the scheme by
the person (being contributions that are held in a fund under the scheme) plus
the amount of interest on those contributions accrued under the scheme.
(3) Despite the Superannuation Act, or any
other Act or any agreement, where subsection (1) applies to a person:
(a) who:
(i) was an AFP employee at
the time the relevant corruption offence was committed but was not such an
employee when charged with that offence; or
(ii) was an old law member
or staff member at the time the relevant corruption offence was committed but
was not such a member or an AFP employee when charged with that offence; and
(b) who would, but for that
subsection, have been entitled to payment of benefits under the relevant
superannuation scheme on or after the day on which the superannuation order
takes effect;
the person is entitled, on the day on which he or she
ceases to be a member of the scheme, to payment of an amount worked out using
the formula:
where:
AC is an amount equal to the sum of the
employee contributions paid under the scheme by the person plus the amount of
interest on those contributions accrued under the scheme; and
AR is an amount equal to that part of the sum
of all amounts paid to the person by way of benefit before the day on which the
superannuation order takes effect that is attributable to AC.
47A
Superannuation orders: variation
(1) If a superannuation order made in respect
of a person:
(a) specifies an amount under
subsection 46(3) or (4); and
(b) takes effect on a day that is
later than the day on which the order is made;
the DPP may, as soon as practicable after the order takes
effect, apply to the court that made the order to vary the order by
substituting for the specified amount an increased amount, having regard to any
amount of employer contributions or benefits paid by the Commonwealth or a Commonwealth
organisation in respect of the person during the prescribed period.
(2) Where an application is made, the court
must vary the superannuation order accordingly and, for the purposes of working
out the increased amount to be specified in the superannuation order, as
varied, subsections 46(3), (4) and (5) apply as if references in subsections
46(3) and (4) to the day on which the order is made were references to the day
on which the variation is made.
(3) In this section:
prescribed period means the period starting
on the day on which the superannuation order is made and ending on the day on
which the variation is made.
47B
Superannuation orders: revocation
(1) A superannuation order made in relation
to a person is to be taken to have been revoked if:
(a) the person’s conviction is
quashed; or
(b) the person’s sentence is so
reduced or otherwise changed that it would no longer support the making of an
application for a superannuation order under subsection 45(1A); or
(c) where the person is taken to be
convicted because of paragraph 42C(1)(b)—the person is brought before a court
in respect of the offence concerned and, having been convicted of that offence,
does not receive a sentence that would support the making of an application for
a superannuation order under subsection 45(1A).
(2) Where a superannuation order is taken to
have been revoked, the DPP must give written notice of the fact to:
(a) the person in respect of whom the
order was made; and
(b) the person’s superannuation
authority.
(3) Where:
(a) a superannuation order is made in
relation to a person who is taken to be convicted because of paragraph
42C(1)(b); and
(b) the superannuation order is to be
taken to have been revoked;
there is payable to the person an amount determined by the
Minister for Finance, being an amount that the Minister considers to be a fair
recompense to the person, having regard to:
(c) any amount paid to the person
under subsection 47(2) or (3); and
(d) any amount recovered from the
person under a recovery order against the person; and
(e) any other financial loss sustained
by the person as a result of the superannuation order; and
(f) any other matters that the
Minister thinks are relevant in the circumstances of the case.
Division 3A—Restraining orders
49A
Application for restraining order
(1) Where a person (in this Division called the
defendant):
(a) has been convicted of an offence;
or
(b) has been, or is about to be,
charged with an offence;
the DPP may apply to the appropriate court for a restraining
order against specified property of the defendant or of another person, or
both.
(2) For the purposes of an application, the
DPP may, on behalf of the Commonwealth, give the court such undertakings with
respect to the payment of damages or costs, or both, as the court requires.
49B
Making of restraining orders
(1) Subject to this Division, where an
application is made for a restraining order against property and the
appropriate court is satisfied that:
(a) the offence concerned is, or may
be, a corruption offence; and
(b) if the defendant has been
sentenced in respect of the offence—the sentence would support the making of an
application for a superannuation order under subsection 45(1A); and
(c) the defendant is, or has been, a
member of a superannuation scheme;
the court may, by order, direct that the property, or such
part of the property as is specified in the order, is not to be disposed of, or
otherwise dealt with, by any person except in the manner and circumstances (if
any) specified in the order.
(2) A restraining order must not be made
against a person’s property to any extent greater than is necessary to ensure
the recovery of any amount payable, or reasonably likely to be payable, by the
defendant under a recovery order.
(3) Subsection (2) does not prevent the
court from making a restraining order against a person’s property, being
property whose value is more than the amount payable, or reasonably likely to
be payable, by the defendant under a recovery order if there is no other property
of sufficient value in respect of which the court can make a restraining order.
(4) A court may make a restraining order
against property whether or not there is any risk of the property being
disposed of, or otherwise dealt with, in a manner that would defeat the
operation of this Part.
(5) Where the application is made in reliance
on the proposed charging of the defendant with the offence concerned, the court
must not make a restraining order unless satisfied that the defendant will be
charged with the offence, or with a related corruption offence, within 48
hours.
(6) A court may refuse to make a restraining
order if the Commonwealth refuses or fails to give the court such undertakings
as the court considers appropriate with respect to the payment of damages or
costs, or both, in relation to the making and operation of the order.
49C
Restraining order may be subject to conditions
(1) A restraining order against a person’s
property may be made subject to such conditions as the court thinks fit, for
example, conditions providing for meeting, out of the property or a specified
part of the property, all or any of the following:
(a) the person’s reasonable living
expenses (including the reasonable living expenses of any dependants of the
person) and reasonable business expenses;
(b) the person’s taxed legal expenses
in defending a criminal charge;
(c) a specified debt incurred by the
person in good faith (being a debt to which neither paragraph (a) or (b)
applies).
(2) The court must not make provision of a
kind mentioned in subsection (1) unless satisfied that the person cannot
meet the expense or debt concerned out of property that is not subject to a
restraining order.
49D
Affidavit of police officer needed in certain cases
(1) Where an application is made for a
restraining order and the defendant has not been convicted of the offence
concerned, the court must not make a restraining order unless:
(a) the application for the order is
supported by an affidavit of a police officer stating that the officer believes
the defendant committed the offence; and
(b) the court is satisfied, having
regard to the matters contained in the affidavit, that there are reasonable
grounds for so believing.
(2) Where an application for a restraining
order is made against specified property of a person other than the defendant,
the court must not make a restraining order against the property unless:
(a) the application is supported by an
affidavit of a police officer stating that the officer believes that the property
is subject to the effective control of the defendant; and
(b) the court is satisfied, having
regard to the matters contained in the affidavit, that there are reasonable
grounds for so believing.
(3) An affidavit made by a police officer for
the purpose of this section stating that the officer believes a particular
matter must set out the grounds on which the officer holds that belief.
(4) The court may, at any time before the
final determination of an application for:
(a) a restraining order; or
(b) an extension of the period of
effect of a restraining order;
direct the DPP to give or publish notice of the
application to a specified person or class of persons in the manner and within
the time the court thinks appropriate.
(5) In this section:
police officer means a member of the
Australian Federal Police or of the police force of a State or Territory.
49E
Notice of application for restraining order
(1) Subject to
subsection (2), the DPP must give written notice of an application for a
restraining order against property to:
(a) the owner of the property; and
(b) any other person the DPP has
reason to believe may have an interest in the property.
(2) Where notice of an application has not
been given, the court must consider the application if the DPP asks it to do so
but, subject to section 49EA, a restraining order made by virtue of this
subsection ceases to have effect at the end of the period (not exceeding 14 days)
specified by the court in the restraining order.
49EA
Extension of certain restraining orders
(1) Subject to subsection (2), the court
may, on application made by the DPP before the end of the period mentioned in
subsection 49E(2), extend the period of operation of a restraining order made
in reliance on that subsection.
(2) Subsections 49D(1), (2), (3) and (5)
apply, with the necessary changes made, to the extension of the period of
operation of a restraining order made in reliance on subsection 49E(2) in the
same way as they apply to the making of a restraining order.
(3) The DPP must give written notice of an
application under subsection (1) for the extension of a restraining order
to:
(a) the owner of the property against
which the restraining order was made; and
(b) any other person who the DPP has
reason to believe may have an interest in the property.
49F
Persons who may appear and adduce evidence
(1) Where:
(a) the DPP applies for a restraining
order against property; and
(b) notice of the application is given
under subsection 49E(1);
any person who claims an interest in the property may
appear and adduce evidence at the hearing of the application.
(2) Where the DPP applies for the extension
of the period of effect of a restraining order made in respect of property, any
person who claims an interest in the property may appear and adduce evidence at
the hearing of the application.
49G
Witnesses not required to answer questions etc. in certain cases
On the hearing of an application for a
restraining order, a witness is not required to answer a question or to produce
a document if the court is satisfied that the answering of the question or the
production of the document may prejudice the investigation of, or the
prosecution of a person for, an offence.
49H
Notice of restraining orders
(1) Subject to subsection (2), where a
restraining order is made against a person’s property, the DPP must give the
person written notice of the order.
(2) Where:
(a) a court makes a restraining order;
and
(b) the court is satisfied that it
would be in the public interest to delay giving notice of the order to a
person;
the court may include in the restraining order an order
that giving the person notice of the restraining order be delayed for the
specified period and the DPP must give the person notice of the restraining
order as soon as practicable after the end of the specified period.
49J
Ancillary orders
(1) Where an appropriate court makes a
restraining order, it may, at the same time or at any later time, make any
ancillary orders that it thinks appropriate, for example:
(a) an order varying the property to
which the restraining order relates;
(b) an order varying any condition to
which the restraining order is subject; and
(c) an
order for the examination on oath before the court or the Registrar of the
court of any person, including:
(i) the owner of property
subject to the restraining order (in this paragraph called the owner);
or
(ii) the defendant;
about the affairs (including the
nature and location of any property) of:
(iii) anyone else who is
either the owner or the defendant, or both; and
(iv) if the person to be
examined is either the owner or the defendant, or both—that person; and
(d) an order about carrying out any
undertaking with respect to the payment of damages or costs given by the
Commonwealth in connection with the making of the restraining order.
(2) An ancillary order may be made on
application by:
(a) the DPP; or
(b) the owner of property subject to
the restraining order; or
(c) with the leave of the court—any
other person.
(3) Where:
(a) a defendant has been convicted of,
or has been charged or is about to be charged with, an offence; and
(b) an appropriate court makes a
restraining order against property in reliance on the conviction, charging or
proposed charging; and
(c) a person, other than the
defendant, who has an interest in the property applies to the court for a
variation of the order to exclude the person’s interest from the order;
the court must grant the application if satisfied that the
applicant’s interest in the property is not subject to the effective control of
the defendant.
(4) Where a person is examined before a court
or a registrar under an order under subsection (1), the person is not
excused from answering a question when required to do so by the court or
registrar, as the case may be, on the ground that the answer to the question
might tend to incriminate the person or make the person liable to forfeiture or
a penalty.
(5) Where a person is examined before a court
or registrar under an order under subsection (1), the statement or
disclosure made by the person in answer to a question put in the course of the
examination, and any information, document or thing obtained as a direct or
indirect result of the statement or disclosure, is not admissible against the
person in any criminal proceedings except a proceeding for giving false
testimony in the course of the examination.
(6) For the purposes of subsection (5),
proceedings on an application for a superannuation order or a restraining order
are not criminal proceedings.
(7) On the hearing of an application for an
order under subsection (1), a witness is not required to answer a question
or to produce a document if the court is satisfied that the answering of the
question or the production of the document may prejudice the investigation of,
or the prosecution of the person for, an offence.
49K
Charge on property subject to restraining order
(1) Where:
(a) a recovery order is made against a
defendant; and
(b) a restraining order is, or has
been, made against:
(i) property of the
defendant; or
(ii) property of another
person in relation to which an order is, or has been, made under subsection
53A(1);
in reliance on the defendant’s
conviction of a particular offence or a related corruption offence or on the
charging, or proposed charging, of the defendant with a particular offence or a
related corruption offence;
then, upon the making of the later of the orders, there is
created, by force of this section, a charge on the property to secure the
payment of the amount specified in the recovery order to the Commonwealth or
the relevant Commonwealth organisation, as the case requires.
(2) A charge on property of a person ceases
to have effect:
(a) if the relevant recovery order
ceases to have effect; or
(b) upon payment to the Commonwealth,
or the relevant Commonwealth organisation, of the amount specified in the
order; or
(c) upon the person becoming a
bankrupt; or
(d) upon the sale or other disposition
of the property by the owner of the property with the consent of the court that
made the recovery order; or
(e) upon the sale of the property to a
purchaser in good faith for sufficient consideration who, at the time of the
purchase, has no notice of the charge;
whichever first occurs.
(3) A charge on property:
(a) is subject to every encumbrance on
the property that came into existence before the charge and that would, but for
this subsection, have priority over the charge; and
(b) has priority over all other
encumbrances; and
(c) subject to subsection (2), is
not affected by any change of ownership of the property.
(4) Where:
(a) a charge is created on property of
a particular kind; and
(b) the provisions of any law of the
Commonwealth or of a State or Territory provide for the registration of title
to, or charges over, property of that kind;
the DPP may cause the charge to be registered under the
provisions of that law and, if the charge is so registered, a person who
purchases, or otherwise acquires an interest in, the property after the
registration is to be taken, for the purposes of paragraph (2)(e), to have
notice of the charge at the time of the purchase or acquisition.
49L
Registration of restraining orders
(1) Where:
(a) a restraining order applies to
property of a particular kind; and
(b) the
provisions of any law of the Commonwealth or of a State or Territory provide
for the registration of title to, or charges over, property of that kind;
the authority responsible for administering those
provisions may, on application by the DPP, record on the register kept under
those provisions particulars of the restraining order.
(2) Where particulars of a restraining order
are recorded under subsection (1), a person who later deals with the
property is to be taken, for the purposes of section 49M, to have notice
of the restraining order at the time of the dealing.
49M
Contravention of restraining orders
(1) A person who intentionally contravenes a
restraining order by disposing of, or otherwise dealing with, property that is
subject to the restraining order is guilty of an offence punishable, upon
conviction, by imprisonment for a period not exceeding 5 years.
(2) Where:
(a) a restraining order is made
against property; and
(b) the property is disposed of, or
otherwise dealt with, in contravention of the restraining order; and
(c) the disposition or dealing was
either not for sufficient consideration or not in favour of a person who acted
in good faith;
the DPP may apply to the court that made the restraining
order for an order that the disposition or dealing be set aside.
(3) Where the DPP makes an application under subsection (2)
in relation to a disposition or dealing, the court may make an order:
(a) setting the disposition or dealing
aside as from the day on which it took place; or
(b) setting the disposition or dealing
aside as from the day of the order under this subsection and declaring the
respective rights of any persons who acquired interests in the property on or
after the day on which the disposition or dealing took place and before the day
of the order under this subsection.
49N
Restraining orders: revocation
Where a court has made a restraining
order against a person’s property, the court may, on application made by the
person, revoke the order if:
(a) where the order was made in
reliance on the person’s conviction of an offence or the charging, or proposed
charging, of the person with an offence—the person gives security satisfactory
to the court for the payment of any amount that may be specified in a recovery
order against the person; or
(b) the person gives undertakings
satisfactory to the court concerning the person’s property.
49P
When do restraining orders cease to have effect?
(1) A restraining order ceases to have effect
if any of the following things happen:
(a) the defendant is acquitted of the
offence, or the charge is withdrawn or otherwise disposed of without conviction
and the defendant has not been charged with a related corruption offence before
the acquittal, withdrawal or disposal;
(b) the defendant is convicted of the
offence, but does not receive a sentence that would support the making of an
application for a superannuation order under subsection 45(1A);
(c) the Minister refuses to authorise
the DPP to apply for a superannuation order in respect of the defendant;
(d) the appropriate court refuses to
make a recovery order against the defendant;
(e) such an order is made in respect
of the defendant but is later satisfied or is taken to have been revoked;
(f) where the restraining order was
made in reliance on the proposed charging of the person with an offence—the
defendant is not charged with the offence or a related corruption offence
before the end of the period of 48 hours after the order is made.
(2) Subject to this section, a restraining
order ceases to have effect, if it has not already done so under subsection (1),
at the end of the relevant period in relation to the order.
(3) If, within the relevant period in
relation to a restraining order, an application is made under section 49Q
for an extension of the period of effect of the restraining order and the court
refuses the application after the end of the relevant period, the restraining
order ceases to have effect when the court refuses the application.
(4) If, within the relevant period in
relation to a restraining order, an application is made under section 49Q
for an extension of the period of effect of the restraining order and the
application is granted, the restraining order ceases to have effect at the
time, or on the occurrence of the event, specified in an order made by the
court under that section.
49Q
Extension of period of effect of restraining orders
(1) The DPP may, before the end of the
relevant period in relation to a restraining order made in reliance on a
person’s conviction of an offence or the charging, or proposed charging, of a
person with an offence, apply to the court that made the restraining order for
an extension of the period of effect of the order.
(2) Where, on an application for an extension
of the period of effect of a restraining order, the court is satisfied:
(a) that a recovery order has been, or
may still be, made against the person; and
(b) where the property concerned is
the property of another person—an order under subsection 53A(1) has been, or
may still be, made;
the court may:
(c) by order, extend the period of
effect of the restraining order; and
(d) make such other order or orders as
it thinks appropriate in relation to the operation of the restraining order.
(3) The DPP must give a person written notice
of an application in relation to a restraining order in respect of the person’s
property.
49R
Notice of applications
(1) A person who applies under section 49J
for an ancillary order in relation to a restraining order must give written
notice of the application to each other person who is entitled under subsection
49J(2) to make an application under section 49J in relation to the
restraining order.
(2) A person who applies under section 49N
for revocation of a restraining order must give written notice of the application
to the DPP.
Division 4—Miscellaneous
51
Person ceases to be an AFP employee: persons charged with corruption offences
(1) Where:
(a) a person is charged with an
offence;
(b) the person ceases, for any reason,
to be an AFP employee on or after the day on which the person is charged
(whether because the period of the person’s engagement ends, by operation of
law or because of anything done by the person or the Commissioner);
then, if the Commissioner believes on reasonable grounds
that the offence is a corruption offence, the Commissioner shall notify the
person’s superannuation authority in writing that the person’s rights and
entitlements under the relevant superannuation scheme are suspended.
(2) The Commissioner shall cause a copy of a
notice to be given to the person concerned.
(3) Where the Commissioner notifies a
superannuation authority that the rights and entitlements of a person are
suspended:
(a) the person is entitled, on the day
on which he or she ceases to be an AFP employee, to receive payment, if the
person elects to do so, of an amount equal to the sum of the employee
contributions paid under the scheme by the person (being contributions held in
a fund under the scheme) plus the amount of interest on those contributions
accrued under the scheme; and
(b) the person is not entitled to
exercise any other right, or to receive any other benefit, under the scheme, or
to receive an adjustment payment, unless:
(i) the person is
acquitted of the offence or the charge is withdrawn or otherwise disposed of
without the conviction of the person;
(ii) the
person is convicted of the offence, but does not receive a sentence that would
support the making of an application for a superannuation order under
subsection 45(1A);
(iii) the Minister refuses
to authorise the DPP to apply for a superannuation order in respect of the
person;
(iv) the appropriate court
refuses to make a superannuation order in respect of the person; or
(v) a superannuation order
made in respect of the person is taken to have been revoked.
(4) Where anything mentioned in paragraph (3)(b)
happens, the Commissioner shall, as soon as practicable, notify the relevant
superannuation authority accordingly.
(5) To avoid doubt, for the purposes of paragraph (1)(b),
a person does not cease to be an AFP employee in circumstances where the person
completes a period of engagement under section 24 (the initial
period) and is re‑engaged under that section for a further period
starting immediately after the end of the initial period.
53A
Court may lift corporate veil etc.
(1) Where an appropriate court makes a
recovery order against a person, it may, on application by the DPP, if it
thinks that particular property is subject to the effective control of the
person, make an order declaring that the whole, or a specified part, of that
property is available to satisfy the recovery order.
(2) Where a court declares that property is
available to satisfy a recovery order:
(a) the recovery order may be enforced
against the property as if the property were property of the person against
whom the order is made; and
(b) a restraining order may be made in
respect of the property as if the property were property of the person against
whom the restructuring order is made.
(3) Where the DPP applies for an order under subsection (1)
that property is available to satisfy a recovery order against a person:
(a) the DPP must give written notice
of the application to the person and to any other person who the DPP has reason
to believe may have an interest in the property; and
(b) the person and any person who
claims an interest in the property may appear and adduce evidence at the
hearing of the application.
54
Amounts payable under section 46, 47, 47B or 51
(1) Where an amount is payable under an order
made under subsection 46(3) in respect of employer contributions or benefits
that are held in a fund (other than the Consolidated Revenue Fund), the amount
is payable out of the fund by the person responsible for the administration of
the fund.
(2) Where an amount is payable under an order
made under subsection 46(3) in respect of employer contributions or benefits
that have been paid to the Commonwealth, the Minister for Finance is to make
arrangements:
(a) for the payment of the amount out
of the Consolidated Revenue Fund; or
(b) where it is not appropriate to
make such a payment—for any other appropriate action to be taken;
and the order is to be taken to have been satisfied by the
taking of any action that gives effect to the arrangements.
(3) An amount payable to a person under
subsection 47(2) or (3) or 51(3) is payable:
(a) if the relevant superannuation
scheme is established by an Act—by the Commonwealth; and
(b) in any other case—by the relevant
superannuation authority out of the fund established under the relevant
superannuation scheme.
(4) Where an amount mentioned in subsection (3)
is payable by the Commonwealth, the amount is payable out of the fund
established under the relevant Act or, if an amount equal to the employer
contributions of the person has been paid to the Commonwealth, out of the
Consolidated Revenue Fund.
(5) An amount payable to a person under
section 47B is payable by the Commonwealth out of the Consolidated Revenue
Fund.
(6) The Consolidated Revenue Fund is
appropriated to the extent necessary to pay any amount that is payable under
this section out of that Fund.
54A
Multiple payments in respect of same employee contributions not allowed
(1) In spite of this Act and the
Superannuation Benefits Act, where an amount has been paid to a person under
subsection 47(2) or (3) or 51(3) of this Act in respect of employee
contributions and interest on those contributions, the person is not entitled
to payment of another amount under any of those subsections, or under subsection
21(4) or (5) of the Superannuation Benefits Act.
(2) In respect of this Act and the
Superannuation Benefits Act, where an amount has been paid to a person under
subsection 21(4) or (5) of the Superannuation Benefits Act in respect of
employee contributions and interest on those contributions, the person is not
entitled to payment of another amount under subsection 47(2) or (3) or 51(3) of
this Act in respect of the same employee contributions and interest.
(3) In this section:
Superannuation Benefits Act means the
Crimes (Superannuation Benefits) Act 1989.
55
Possible superannuation order not to be taken into account in sentencing
A court shall not, in sentencing a
person convicted of an offence punishable by imprisonment for life or for a
term longer than 12 months, take into account the possibility that a
superannuation order may be made.
56
Constitution of appropriate courts
Where an application for a
superannuation order or restraining order is made to a court before which a
person was convicted of a corruption offence:
(a) the application may be dealt with
by the court; and
(b) any power in relation to the
superannuation order or restraining order may be exercised by the court;
whether or not it is constituted in the same way in which
it was constituted when the person was convicted of the offence.
Part VI—Miscellaneous
60A
Secrecy
(1) This section applies to a person who is,
or was at any time:
(a) the Commissioner; or
(b) a Deputy Commissioner; or
(c) an AFP employee; or
(d) a special member; or
(da) a special protective service
officer; or
(e) a person engaged under section 35;
or
(f) a person performing functions
under an agreement under section 69D.
(2) A person to whom this section applies
must not, directly or indirectly:
(a) make a record of any prescribed
information; or
(b) divulge or communicate any
prescribed information to any other person;
except for:
(c) the purposes of this Act or the
regulations; or
(d) the purposes of the Law
Enforcement Integrity Commissioner Act 2006 or regulations under that Act;
or
(e) the purposes of the Witness
Protection Act 1994 or regulations under that Act; or
(f) the carrying out, performance or
exercise of any of the person’s duties, functions or powers under Acts or
regulations mentioned in paragraphs (c), (d) and (e).
(2A) This section does not apply to:
(a) a divulgence or communication of
prescribed information that is authorised by the Commissioner under subsection (2B);
or
(b) a divulgence or communication of
personal information that is authorised by the Commissioner under subsection (2C).
(2B) The Commissioner may, if he or she is of
the opinion that it is in the interests of the due administration of justice to
do so, authorise a person to whom this section applies to divulge or
communicate prescribed information that relates to the National Witness
Protection Program established by the Witness Protection Act 1994 to a
person specified in the authorisation.
(2C) The Commissioner may authorise a person to
whom this section applies to divulge or communicate an individual’s personal
information if the individual requests, or gives consent to, that divulgence or
communication.
(2D) Subsection (2C) does not require the
Commissioner to authorise a divulgence or communication of personal information
that is otherwise required or authorised under this Act.
(3) In this
section:
personal information has the same meaning as
in the Privacy Act 1988.
prescribed information means information
obtained by a person to whom this section applies:
(a) in the course of carrying out,
performing or exercising any of the person’s duties, functions or powers under:
(i) this Act or the
regulations; or
(ii) the Law Enforcement
Integrity Commissioner Act 2006 or regulations under that Act; or
(iii) the Witness
Protection Act 1994 or regulations under that Act; or
(b) otherwise in the course of the
person’s service, employment or engagement under Acts or regulations mentioned
in paragraph (a).
Note: The Privacy Act 1988 contains
provisions relevant to the use and disclosure of information divulged or
communicated under this Act.
61
Awards for bravery etc.
(1) Where a Deputy Commissioner, an AFP
employee, a special member or a special protective service officer has, by his
or her bravery or other conspicuous conduct, merited a prescribed award, the
Commissioner may confer the award on that person.
(2) An award shall be conferred on the basis
of such criteria as are prescribed.
63
Personation etc. of member or special member
(1) A person, not being a member or special
member, shall not:
(b) wear or display any uniform or
badge of a member or special member, any colourable imitation of such a uniform
or badge, or any uniform or badge so closely resembling such a uniform or badge
as to be likely to deceive;
(c) have in his or her possession any
arms or ammunition, or any article of clothing, accoutrements or equipment,
supplied to any member or special member.
Penalty: Imprisonment for 12 months.
(2) Paragraphs (1)(b) and (c) do not
apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
63A
Personation etc. of protective service officer or special protective service
officer
(1) A person, not being a protective service
officer or a special protective service officer, must not:
(a) wear or display any uniform or
badge of a protective service officer or special protective service officer,
any colourable imitation of such a uniform or badge, or any uniform or badge so
closely resembling such a uniform or badge as to be likely to deceive; or
(b) have in the person’s possession
any arms or ammunition, or any article of clothing, accoutrements or equipment,
supplied to any protective service officer or special protective service
officer.
Penalty: Imprisonment for 12 months.
(2) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal
Code.
63B
Possession of documents etc.
(1) A person, not being a member, special
member, protective service officer or special protective service officer, must
not have in the person’s possession any book or document issued by, or
purporting to be issued by, the Australian Federal Police.
Penalty: Imprisonment for 12 months.
(2) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal
Code.
64
Assault etc.
The court convicting a person of an
offence against section 147.1 or 149.1 of the Criminal Code that
relates to a member, special member, protective service officer or special
protective service officer may, order the offender to pay such compensation as
the court thinks fit for any damage or injury caused by the offender to the
uniform, clothing or accoutrements of the member, special member, protective
service officer or special protective service officer concerned or for any
medical or other expenses incurred in consequence of personal injury sustained
by him or her by reason of the offence.
64A
Members in uniform to wear identification numbers
(1) A member must, at all times when he or
she is wearing his or her police uniform, wear his or her identification number
clearly visible on the uniform.
Penalty: 5 penalty units.
(1A) Subsection (1) is an offence of strict
liability.
Note: For strict liability, see section 6.1
of the Criminal Code.
(2) It is a defence to a prosecution for an
offence against subsection (1) if the defendant proves that his or her
identification number was not worn on, or attached to, the front of his or her
uniform in consequence of:
(a) the act of another person (not
being a member) done without the consent of the defendant; or
(b) an unintentional omission on the
part of the defendant.
(3) The Commissioner shall take such steps as
are necessary to enable members to whom subsection (1) applies to comply
with that subsection.
64AAA
Protective service officers in uniform to wear identification numbers
(1) A protective service officer must, at all
times when he or she is wearing his or her protective service officer uniform,
wear his or her identification number clearly visible on the uniform.
Penalty: 5 penalty units.
(2) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence to a prosecution for an
offence against subsection (1) if the defendant proves that his or her
identification number was not clearly visible on the uniform as a consequence
of:
(a) the act of another person (not
being a protective service officer) done without the consent of the defendant;
or
(b) an unintentional omission of the
defendant.
Note: The defendant bears a legal burden in relation
to the matter in subsection (3). See section 13.4 of the Criminal
Code.
(4) The Commissioner must take such steps as
are necessary to enable protective service officers to whom subsection (1)
applies to comply with that subsection.
64AA
Suspended AFP employees who are members
If an AFP employee who is a member is
suspended from duties under the regulations, the member must not, while the
suspension is in force, exercise any power conferred on a member by this Act or
any other law of the Commonwealth or of a Territory.
Penalty: Imprisonment for 2 years.
64AAB
Suspended AFP employees who are protective service officers
If an AFP employee who is a protective
service officer is suspended from duties under the regulations, the protective
service officer must not, while the suspension is in force, exercise any power
conferred on a protective service officer by this Act or any other law of the
Commonwealth or of a Territory.
Penalty: Imprisonment for 2 years.
64B
Liability for wrongful acts of members
(1) The Commonwealth is liable in respect of
a tort committed by a member or a protective service officer in the performance
or purported performance of his or her duties as such a member or a protective
service officer in like manner as a person is liable in respect of a tort
committed by his or her employee in the course of his or her employment, and
shall, in respect of such a tort, be treated for all purposes as a joint
tortfeasor with the member or the protective service officer.
(2) In a claim by the Commonwealth for
damages in respect of a tort, an act or omission of a member or a protective
service officer in the performance or purported performance of his or her
duties as a member or a protective service officer may be relied on as
constituting contributory negligence by the Commonwealth if the act or omission
could have been so relied on if it had been done by an employee of the
Commonwealth in the course of his or her employment.
(3) The liability of the Commonwealth under subsection (1)
does not extend to a liability to pay damages in the nature of punitive
damages.
(4) Without limiting the application of subsection (1),
the Commonwealth may:
(a) where proceedings have been
instituted against a member or a protective service officer with respect to a
tort committed by the member or the protective service officer in the
performance or purported performance of his or her duties as a member or a
protective service officer—as joint tortfeasor with the member or the
protective service officer (whether or not the Commonwealth is a party to the
proceedings):
(i) pay to the plaintiff,
on behalf of the member or the protective service officer, the whole or a part
of any damages or costs (not being damages in the nature of punitive damages)
that the member or the protective service officer has been ordered by the Court
in the proceedings to pay to the plaintiff; and
(ii) pay to the member or
the protective service officer any costs incurred by him or her in the
proceedings and not recovered from the plaintiff; or
(b) where a member or a protective
service officer has entered into a settlement of a claim by another person that
has, or might have, given rise to proceedings of a kind referred to in paragraph (a)—as
joint tortfeasor with the member or the protective service officer (whether or
not the Commonwealth is a party to the settlement), pay to that other person
the whole or a part of the amount that, under the terms of the settlement, the
member or the protective service officer is liable to pay to that other person.
(5) For the purposes of this section:
(a) an act or omission of a member in
the capacity of a constable shall be deemed to have been done in the
performance of his or her duties as a member; and
(b) a reference to a plaintiff
includes a reference to a defendant counter‑claiming; and
(c) a reference to a member includes a
reference to a special member; and
(d) a reference to a protective
service officer includes a reference to a special protective service officer.
66
Protection of persons in respect of work reports
(1) An action or proceeding, civil or
criminal, does not lie against a person in respect of any oral or written report
made in good faith by the person for the purposes of this Act or the
regulations, being a report about work done, or proposed to be done, by the
Commissioner, a Deputy Commissioner, an AFP employee, a special member or a
special protective service officer.
(2) A report is to be taken to have been made
in good faith if the person who made it was not actuated by ill will to the
Commissioner, Deputy Commissioner, AFP employee, special member or special
protective service officer, as the case may be, or by any other improper
motive.
(3) Subsection (1)
does not apply unless:
(a) the person who made the report
believed on reasonable grounds that it was the function or duty of the person
to whom the report was made to receive it; and
(b) if the report contained matter
that was false or misleading in a material respect—the person who made the
report did not know, and could not with reasonable diligence have discovered,
that the report contained such matter.
67
Annual reports
(1) The Commissioner shall, as soon as
practicable after each 30 June, prepare and furnish to the Minister a
report on the administration and the operations of the Australian Federal
Police during the year that ended on that date.
(1A) The report must contain, in respect of the
year, prescribed particulars about:
(a) the AFP conduct issues that were
dealt with under Part V during that year; and
(b) the action that was taken, during
that year, in relation to AFP conduct issues that were dealt with under
Division 3 of Part V.
(2) The Minister shall cause a report
furnished to him or her under subsection (1) to be laid before each House
of the Parliament within 15 sitting days of that House after the report is
received by the Minister.
68
Proof of appointment, status of member etc.
Deputy Commissioner
(1) The Commissioner may, by writing signed
by the Commissioner, certify that a specified person has been appointed as a
Deputy Commissioner under subsection 17(1) and may also certify all or any of
the following in relation to the person:
(a) that he or she entered into the
undertaking mentioned in subsection 36(2) immediately after his or her
appointment;
(b) that, on a specified date, he or
she made and subscribed the oath or affirmation mentioned in the certificate
before the Commissioner;
(c) that he or she is, on the date on
which the certificate is signed, a Deputy Commissioner and has been such a
Deputy Commissioner continuously since he or she was so appointed.
AFP employees who are members
(2) The Commissioner may, by writing signed
by the Commissioner, certify that a specified person has been declared to be a
member under section 40B and may also certify all or any of the following
in relation to the person:
(a) that he or she entered into the
undertaking mentioned in subsection 36(3) immediately after the declaration
under section 40B;
(b) that, on a specified date, he or
she made and subscribed the oath or affirmation mentioned in the certificate
before the Commissioner or a specified person authorised by the Commissioner
for the purposes of subsection 36(3);
(c) that he or she is, on the date on
which the certificate is signed, a member and has been such a member
continuously since the declaration under section 40B;
(d) that a declaration is in force, or
was in force on a specified date or during a specified period, under subsection
5(3) or 9(2A) or (2B) in relation to the member (declarations about rank).
Special members
(3) The Commissioner may, by writing signed
by the Commissioner, certify that a specified person has been appointed as a
special member under section 40E and may also certify all or any of the
following in relation to the person:
(a) that he or she entered into the
undertaking mentioned in subsection 36(4) immediately after his or her
appointment;
(b) that, on a specified date, he or
she made and subscribed the oath or affirmation mentioned in the certificate
before the Commissioner or a specified person authorised by the Commissioner
for the purposes of subsection 36(4);
(c) that he or she is, on the date on
which the certificate is signed, a special member and has been such a special
member continuously since he or she was so appointed.
Certification that a person is or is not a member or
special member
(4) The Commissioner may, by writing signed
by the Commissioner, certify that a specified person:
(a) is, or is not, a member or special
member; or
(b) was, or was not, on a specified
day, or during a specified period, a member or special member.
AFP employees who are protective service officers
(4A) The Commissioner may, by writing signed by
the Commissioner, certify that a specified person has been declared to be a
protective service officer under section 40EA and may also certify all or
any of the following in relation to the person:
(a) that he or she entered into the
undertaking mentioned in subsection 36(4A) immediately after the declaration
under section 40EA;
(b) that, on a specified date, he or
she made and subscribed the oath or affirmation mentioned in the certificate
before the Commissioner or a specified person authorised by the Commissioner
for the purposes of subsection 36(4A);
(c) that he or she is, on the date on
which the certificate is signed, a protective service officer and has been such
a protective service officer continuously since the declaration under section 40EA.
Special protective service officers
(4B) The Commissioner may, by writing signed by
the Commissioner, certify that a specified person has been appointed as a
special protective service officer under section 40EC and may also certify
all or any of the following in relation to the person:
(a) that he or she entered into the
undertaking mentioned in subsection 36(4B) immediately after his or her
appointment;
(b) that, on a specified date, he or
she made and subscribed the oath or affirmation mentioned in the certificate
before the Commissioner or a specified person authorised by the Commissioner
for the purposes of subsection 36(4B);
(c) that he or she is, on the date on
which the certificate is signed, a special member and has been such a special
member continuously since he or she was so appointed.
Certification that a person is or is not a protective
service officer or special protective service officer
(4C) The Commissioner may, by writing signed by
the Commissioner, certify that a specified person:
(a) is, or is not, a protective
service officer or a special protective service officer; or
(b) was, or was not, on a specified
day, or during a specified period, a protective service officer or a special
protective service officer.
Conclusive evidence of certificate under this section
(5) A document purporting to be a certificate
given under this section is, unless the contrary is established, to be presumed
to have been duly given and be conclusive evidence of the matters stated in the
certificate.
68A
Certificates in relation to transferred PSOs
(1) This section applies in relation to a
person who is a transferred PSO, instead of subsection 68(4A).
(2) The Commissioner may, by writing signed
by the Commissioner, certify that a specified person is a transferred PSO.
(3) The Commissioner may also certify either
or both of the following in relation to the person:
(a) that the person made and
subscribed an oath or affirmation under section 10 of the Australian
Protective Service Act 1987;
(b) that the person is, on the date on
which the certificate is signed, a protective service officer and has been such
a protective service officer continuously since being appointed under section 9
of the Australian Protective Service Act 1987.
(4) Unless the contrary is proved, a document
purporting to be a certificate given under this section is taken to be such a
certificate and to have been duly given.
(5) A certificate under this section is prima
facie evidence of the matters stated in the certificate.
(6) In this section:
APS transferee means a person who,
immediately before the transfer time, was an employee assisting the
Commissioner of the Australian Federal Police under subsection 5(2) of the Australian
Protective Service Act 1987.
transferred PSO means an APS transferee who,
immediately before the transfer time, was a protective service officer within
the meaning of the Australian Protective Service Act 1987.
transfer time means the time specified by the
Public Service Commissioner in a determination under paragraph 72(1)(b) of the Public
Service Act 1999 as the time at which the APS transferees become employees
of the Australian Federal Police.
69
Prohibition of patronage and favouritism
The Commissioner, or a delegate of the
Commissioner, in exercising powers under this Act:
(a) in relation to the engagement of
AFP employees; or
(b) otherwise in relation to AFP
employees;
must do so without patronage or favouritism.
69A
Persons engaged overseas as employees
(1) The Commissioner, on behalf of the
Commonwealth, may engage persons overseas to perform duties overseas as
employees.
(2) The Commissioner, on behalf of the
Commonwealth, has all the rights, duties and powers of an employer in respect
of persons engaged under this section.
(3) This section does not, by implication,
limit any other power of the Commissioner to engage persons to work overseas.
69B
Limited operation of Workplace Relations Act
(1) The Workplace Relations Act 1996 (other
than Division 9 of Part 9 or Part 16) does not apply in relation
to any of the following matters:
(a) a matter covered by any of
Divisions 2 to 8 of Part IV or any action taken under any of those
Divisions;
(b) a matter covered by Part V or
any action (other than action to terminate employment under section 28 of
this Act to which the Workplace Relations Act 1996 would otherwise
apply) taken in relation to a matter covered by that Part;
(c) any entitlement of AFP employees
to adjustment payments;
(d) any other matter prescribed by the
regulations.
(2) The Workplace Relations Act 1996 (other
than Division 4 of Part 12) does not apply in relation to the
termination of employment of AFP employees.
(3) To avoid doubt, this section does not
imply that the Workplace Relations Act 1996 applies to any matter
covered by this Act:
(a) that is not mentioned in this
section; and
(b) to which the Workplace
Relations Act 1996 would not otherwise apply.
69C
Delegation
The Commissioner may, in writing,
delegate to a Deputy Commissioner, an AFP employee or a special member, all or
any of the Commissioner’s powers, functions or duties under this Act.
69D
Secondment of persons to assist the Australian Federal Police
(1) The Commissioner may, by written
agreement with a body or organisation, whether within or outside Australia,
arrange for a person who:
(a) is employed by that body or
organisation; and
(b) has suitable qualifications and
experience;
to assist the Australian Federal Police in the performance
of its functions by performing the functions specified in the agreement.
(2) The terms and conditions (including
remuneration and allowances) applicable to a person performing functions under
an agreement are those specified in the agreement.
69E
Commissioner may charge for certain protective services
(1) If services are provided by a protective
service officer or a special protective service officer at the request of a
person other than:
(a) a person holding office under the
Commonwealth; or
(b) a Commonwealth authority;
the Commissioner may charge for the services.
(2) A charge made under subsection (1)
must be an amount reasonably related to the cost of providing the services.
(3) In this
section:
Commonwealth authority means:
(a) a body, whether incorporated or
unincorporated, established for a public purpose:
(i) by or under a law of
the Commonwealth or a law of a Territory other than the Australian Capital
Territory or the Northern Territory; or
(ii) by the Governor‑General
or a Minister; or
(b) an incorporated company in which
the Commonwealth or a body described in paragraph (a) has a controlling
interest; or
(c) any other agency or
instrumentality of the Commonwealth.
70
Regulations
The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters required
or permitted by this Act to be prescribed, or necessary or convenient to be
prescribed, for securing the discipline and good government of the Australian
Federal Police, or for otherwise carrying out or giving effect to this Act, and,
in particular, making provision for and in relation to:
(a) the return to the Commissioner by
a person who has ceased to be an AFP employee, a special member or a special
protective service officer of property (including accoutrements and clothing)
supplied to him or her for the purposes of his or her service as an AFP
employee, a special member or a special protective service officer or in his or
her custody by virtue of that service, and the recovery by the Commissioner of
any such property not so returned, including the issue of search warrants by
Magistrates for purposes of such recovery and the execution of such warrants;
and
(aa) the disposal of unclaimed property
that has lawfully come into the possession of an AFP employee, a special member
or a special protective service officer; and
(b) penalties, not exceeding a fine of
5 penalty units, for offences against the regulations; and
(c) the police services that may be
rendered by the Australian Federal Police at the request of, or under an
agreement with, a member of the public or a body corporate or other
organisation (other than an authority of the Commonwealth), and the payment and
recovery of such fees as are prescribed in relation to rendering those
services; and
(d) the payment of such fees as are
prescribed in relation to police services rendered by the Australian Federal
Police in relation to a prescribed authority of the Commonwealth, where
rendering those services is a function of the Australian Federal Police; and
(e) requiring AFP employees who are
not members to make and subscribe oaths or affirmations of secrecy in the
prescribed form in relation to the matters coming to their knowledge in the
course of their employment as such employees; and
(f) the making of deductions from the
salary of the Commissioner, a Deputy Commissioner or an AFP employee in order
to satisfy a judgment debt (including interest on a judgment debt); and
(g) enabling an AFP employee to resign
from the Australian Federal Police for the purpose of becoming a candidate at
an election of a member or members of the Parliament of the Commonwealth, the
Parliament of a State, the Legislative Assembly for the Australian Capital
Territory or the Legislative Assembly of the Northern Territory; and
(h) the re‑instatement of
persons as AFP employees; and
(i) compliance by AFP appointees with
AFP professional standards; and
(j) the storage, handling and
confidentiality of any statement given under section 40L and the use which
may be made of any such statement, including any limitations on such use; and
(k) AFP employment decisions and the
values on which such decisions must be based, including:
(i) impartiality and
professionalism; and
(ii) merit; and
(iii) freedom from
discrimination; and
(iv) openness and accountability;
and
(v) fairness; and
(vi) equity in employment;
and
(vii) effectiveness; and
(l) the review of AFP employment
decisions.
Part VII—Transitional
71
Interpretation of Part VII
In this Part, unless the contrary
intention appears:
(a) a reference to the commencing date
shall be read as a reference to the date fixed under subsection 2(2).
(b) a reference to an existing Police
Force shall be read as a reference to the Commonwealth Police Force or the
Police Force of the Australian Capital Territory; and
(c) a reference to a member of an
existing Police Force shall be read as a reference to:
(i) a member of the
Commonwealth Police Force referred to in paragraph 4(1)(a) of the Commonwealth
Police Act 1957;
(ii) a person deemed to be
a Commonwealth Police Officer by virtue of subsection 4(2) of that Act; or
(iii) a member, other than a
special constable, of the Police Force of the Australian Capital Territory.
75
Recognition of previous service for certain purposes
For the purposes of this Act, the Superannuation
Act 1976, the Maternity Leave (Commonwealth Employees) Act 1973 and
the Long Service Leave (Commonwealth Employees) Act 1976, service of a
person as a member of the Australian Federal Police shall be deemed to include
service of that person as a member of an existing Police Force.
77
Accrued leave
A person appointed in pursuance of
section 72 of this Act, as in force on the commencing date, retains the
rights, if any, in respect of:
(a) recreation leave; and
(b) leave on the ground of illness;
that had accrued to him or her as a member of an existing
Police Force or as a member of the Australian Public Service immediately before
the commencing date.
80
Powers and duties in relation to Commonwealth places
Until an arrangement is made between the
Commissioner and the Commissioner of Police (however designated) of a State for
the purposes of subsection 8(2), members of the Australian Federal Police may,
under this Act, exercise and perform, in relation to a Commonwealth place in that
State within the meaning of the Commonwealth Places (Application of Laws)
Act 1970, powers and duties equivalent to the powers and duties that were,
before the commencing date, exercised and performed in relation to those places
under the Commonwealth Police Act 1957.