COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166, 1994
Making Information - Assented to 16 December 1994
COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - TABLE OF PROVISIONS
TABLE OF PROVISIONS PART 1-PRELIMINARY Section 1. Short title etc. 2. Definitions 3. Conciliation 4. Action consequential on report 5. Transfers to Investigation Division 6. Insertion of new section: 19. False complaints and providing false information in relation to complaints 7. Insertion of new section: 21A. Ombudsman may initiate investigation 8. Duties of Ombudsman with respect to complaints 9. Ombudsman may determine that complaint should not be investigated 10. Special or additional investigations conducted by Ombudsman under this Part 11. Power to obtain information and documents 12. Persons affected to be informed of results of investigation by Ombudsman 13. Ombudsman to inform complainant of results of investigation 14. Insertion of new section: 38A. Progress reports about complaints 15. Reports of special inquiries 16. Insertion of new Part: PART VA-UNDISPUTED CHARGES 52A. Undisputed charges in respect of breaches of discipline 52B. Commissioner may impose penalty 52C. Ombudsman to be notified of penalty 52D. Ombudsman may inform Attorney-General of penalty 52E. Appeals 17. Charges in respect of breaches of discipline 18. Powers of Tribunal 19. Insertion of new section: 88A. Offence of victimisation 20. Transitional provision 21. Other amendments to extend the application of the Complaints (Australian Federal Police) Act 1981 to AFP appointees 22. Other amendments to introduce gender-neutral terminology in the Complaints (Australian Federal Police) Act 1981 23. Other amendments to penalties SCHEDULE 1 OTHER AMENDMENTS TO EXTEND THE APPLICATION OF THE COMPLAINTS (AUSTRALIAN FEDERAL POLICE) ACT 1981 TO AFP APPOINTEES SCHEDULE 2 OTHER AMENDMENTS TO INTRODUCE GENDER-NEUTRAL TERMINOLOGY IN THE COMPLAINTS (AUSTRALIAN FEDERAL POLICE) ACT 1981 SCHEDULE 3 OTHER AMENDMENTS TO PENALTIES COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - LONG TITLE
An Act to amend the Complaints (Australian Federal Police) Act 1981, and for related purposes COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 1 Short title etc.
(Date of commencement 13 January 1995) 1.(1) This Act may be cited as the Complaints (Australian Federal Police) Amendment Act 1994. (2) In this Act, "Principal Act" means the Complaints (Australian Federal Police) Act 1981.*1* (Minister's second reading speech made in- Senate on 30 June 1994 House of Representatives on 17 November 1994) *1* No. 21, 1981, as amended. For previous amendments, see No. 62, 1983; Nos. 72 and 165, 1984; No. 122, 1985; No. 168, 1986; No. 141, 1987; No. 153, 1989 (as amended by No. 28, 1991); No. 11, 1990; Nos. 28 and 199, 1991; and No. 143, 1992. COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 2 Definitions
2. Section 3 of the Principal Act is amended: (a) by omitting "a member" (wherever occurring) from the definition of
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"minor complaint" in subsection (1) and substituting "an AFP appointee"; (b) by omitting from subsection (1) the definitions of "member", "member of the Australian Federal Police" and "staff member"; (c) by inserting in subsection (1) the following definitions: " 'AFP appointee' means: (a) a member of the Australian Federal Police within the meaning of subsection 6(2) of the Australian Federal Police Act 1979; or (b) a staff member of the Australian Federal Police within the meaning of subsection 6(3) of that Act; or (c) a special member of the Australian Federal Police appointed under section 27 of that Act; 'Federal police officer' means: (a) a member of the Australian Federal Police within the meaning of subsection 6(2) of the Australian Federal Police Act 1979; or (b) a special member of the Australian Federal Police appointed under section 27 of that Act;"; (d) by omitting from paragraph (3)(a) "members" (wherever occurring) and substituting "AFP appointees"; (e) by omitting from paragraph (3)(b) "member" (wherever occurring) and substituting "AFP appointee"; (f) by omitting from paragraphs (3)(ba), (bb), (bc) and (bd) "a member" (wherever occurring) and substituting "an AFP appointee"; (g) by omitting paragraph (3)(c) and substituting the following paragraph: "(c) a reference to the charging of an AFP appointee in respect of a breach of discipline is a reference to the institution of proceedings against the appointee in respect of the breach in accordance with the prescribed regulations;". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 3 Conciliation
3. Section 6B of the Principal Act is amended: (a) by omitting subsection (5) and substituting the following subsection: "(5) Evidence of a statement made or an answer given by an AFP appointee in the course of an attempt under this section to resolve a complaint by conciliation is not admissible against the appointee in any proceedings (including proceedings in relation to a breach of discipline)."; (b) by omitting subsection (7) and substituting the following subsection: "(7) For the purposes of subsection (1), a senior member is an AFP appointee (other than the appointee against whom the complaint is made) whose substantive rank is not lower than sergeant.". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 4 Action consequential on report
4. Section 11 of the Principal Act is amended by inserting in paragraph (1)(b) "or (3A)" after "subsection 26(3)". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 5 Transfers to Investigation Division
5. Section 16 of the Principal Act is amended: (a) by omitting from subsections (1) and (2) "members" and substituting "Federal police officers"; (b) by omitting from subsection (2) "member" (wherever occurring) and substituting "Federal police officer"; (c) by omitting subsection (3) and substituting the following subsections: "(3) Subject to subsection (4), the Commissioner may direct a Federal police officer serving in the Investigation Division to perform duties that are not related to the Division's functions so long as those duties do not unduly interfere with the performance by the Division of its functions. "(4) Subject to subsection (5), the Commissioner must not direct a Federal police officer serving in the Investigation Division to investigate an offence alleged to have been committed by a person other than an AFP appointee. "(5) A Federal police officer may investigate an offence alleged to have been committed by a person other than an AFP appointee to the extent that such an investigation is necessary to investigate an offence alleged to have been committed by an AFP appointee.". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 6
6. After section 18 of the Principal Act the following section is inserted: False complaints and providing false information in relation to complaints "19.(1) A person must not make a complaint to which this Act applies to an AFP appointee about action taken by an AFP appointee if the person knows that the complaint is false in a material particular. Penalty: 20 penalty units. "(2) A person must not, in relation to a complaint to which this Act applies, provide information to an AFP appointee that the person knows to be false in a material particular. Penalty: 20 penalty units.
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"(3) Proceedings for an offence against this section must not be brought except with the consent in writing of: (a) the Ombudsman or an authorised person; or (b) if the Ombudsman or an authorised person refuses to consent-the Attorney-General. "(4) In this section: 'authorised person' means a person who has been authorised in writing by the Ombudsman to give consents under subsection (3).". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 7
7. After section 21 of the Principal Act the following section is inserted: Ombudsman may initiate investigation "21A.(1) The Ombudsman may, on his or her own initiative: (a) undertake an investigation of the actions of an AFP appointee; or (b) refer any matter relating to the actions of an AFP appointee (other than a procedural matter) to the Investigation Division for investigation. "(2) In this section: 'actions of an AFP appointee' includes actions taken by the appointee before the commencement of this section; 'procedural matter' means a matter that, in substance, relates to the practices and procedures of the Australian Federal Police.". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 8 Duties of Ombudsman with respect to complaints
8. Section 23 of the Principal Act is amended by omitting subsection (4) and substituting the following subsection: "(4) If the Ombudsman has power under this Act and under paragraph 5(1)(b) of the Ombudsman Act 1976 to investigate any action of an AFP appointee, the Ombudsman cannot investigate the action under the Ombudsman Act 1976. COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 9 Ombudsman may determine that complaint should not be investigated
9. Section 24 of the Principal Act is amended by inserting in subparagraph (1)(b)(i) ", trivial" after "frivolous". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 10 Special or additional investigations conducted by Ombudsman under this Part
10. Section 26 of the Principal Act is amended: (a) by omitting subsection (3) and substituting the following subsections: "(3) On completing an investigation the Ombudsman may, if he or she thinks it appropriate to do so, when giving particulars of the results of his or her investigation to the Commissioner under subsection 34(1): (a) recommend to the Commissioner that an AFP appointee be: (i) charged with an offence or a breach of discipline; or (ii) offered a caution or admonition for a breach of discipline; that the Ombudsman thinks the appointee committed; or (b) forward to the Minister a request that the Minister cause an inquiry under section 50 to be held into the action that was the subject of the investigation; or (c) notify the Commissioner, in writing, that the Ombudsman thinks an AFP appointee took action that the appointee should not have taken. "(3A) The Ombudsman may, in a notification under paragraph (3)(c), include any recommendation (other than a recommendation referred to in paragraph (3)(a) or (b)) that the Ombudsman thinks fit to make. "(3B) If the Ombudsman makes a recommendation under subsection (3A), the Ombudsman may also request the Commissioner to give to the Ombudsman, within a specified time, particulars of the action the Commissioner proposes to take as a result of the recommendation."; (b) by omitting from subsection (5) "member" (wherever occurring) and substituting "AFP appointee"; (c) by adding at the end the following subsections: "(6) The Commissioner may give to the Ombudsman comments about a notification given to him or her under paragraph (3)(c). "(7) Sections 32 and 33 apply to a recommendation made under subsection (3A) of this section in the same manner as they apply in the same way as a report to the Commissioner under section 31. "(8) On completion of an investigation the Ombudsman may, if he or she thinks fit, give to any Department, body or person comments or suggestions with respect to any matter relating to or arising out of the investigation.". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 11 Power to obtain information and documents
11. Section 27 of the Principal Act is amended by adding at the end of
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subsection (5) the following word and paragraph: "; or (f) proceedings in relation to a breach of discipline.". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 12 Persons affected to be informed of results of investigation by Ombudsman
12. Section 34 of the Principal Act is amended: (a) by inserting in subsection (1) "or the actions of an AFP appointee" after "complaint" (wherever occurring); (b) by omitting subsection (2); (c) by omitting from subsection (3) "an investigation of a complaint by him or her." and substituting: "his or her investigation of: (a) a complaint; or (b) the actions of an AFP appointee.". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 13 Ombudsman to inform complainant of results of investigation
13. Section 37 of the Principal Act is amended: (a) by omitting from subsection (1) ", being a complaint that was originally referred to the Commissioner by the Ombudsman under section 23"; (b) by omitting from paragraph (1)(b) "a member" and substituting "an AFP appointee"; (c) by omitting from subsection (2) "containing recommendations referred to in paragraph 36(3)(a)" and substituting "or makes a recommendation in accordance with subsection 36(3) or subsection 36(3A)". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 14
14. After section 38 of the Principal Act the following section is inserted: Progress reports about complaints "38A.(1) The Ombudsman may, at any time, give a complainant a progress report about a complaint to which this Act applies. "(2) A progress report may set out any information that the Ombudsman thinks appropriate about the way in which the complaint is being dealt with under this Act. "(3) A progress report is additional to any other report that must be given to the complainant under this Act.". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 15 Reports of special inquiries
15. Section 52 of the Principal Act is amended: (a) by omitting from subsection (1) "he" and substituting "the Minister"; (b) by inserting in paragraph (2)(a) "paragraph 26(3)(b) or" after "under"; (c) by omitting from paragraph (2)(b) "a member" and substituting "an AFP appointee"; (d) by omitting from paragraph (2)(b) "his" and substituting "the Minister's"; (e) by inserting in paragraph (2)(b) "or she" after "he". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 16
16. After Part V of the Principal Act the following Part is inserted: "PART VA-UNDISPUTED CHARGES Undisputed charges in respect of breaches of discipline "52A.(1) If: (a) proceedings are begun by the Commissioner against an AFP appointee under the prescribed regulations in respect of a breach of discipline; and (b) the proceedings are the result of: (i) the investigation of a complaint that was referred to the Commissioner by the Ombudsman; or (ii) the investigation of a complaint (other than a complaint made by a person known to the Commissioner to be an AFP appointee) that was referred to the Investigation Division under section 6; or (iii) the investigation of the actions of the appointee by the Ombudsman under Part III; and (c) the appointee admits the truth of the matters alleged to constitute the breach; the proceedings are to be heard and determined by the Commissioner, or by the Disciplinary Tribunal, in accordance with the following subsections. "(2) If the Commissioner thinks that the public interest requires that the proceedings be dealt with by the Tribunal, then the proceedings are to be dealt with by the Tribunal under subsection 67(1). "(3) If the Commissioner does not think that the public interest requires the proceedings to be dealt with by the Tribunal, and the Ombudsman agrees in writing, then the proceedings are to be dealt with by the Commissioner. "(4) If:
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(a) the Commissioner does not think that the public interest requires the proceedings to be dealt with by the Tribunal; and (b) the Ombudsman does not agree in writing; the proceedings are to be dealt with by the Tribunal or by the Commissioner, as the Attorney-General, in writing, directs. "(5) The following rules apply to a direction by the Attorney-General for the purposes of subsection (4): (a) before giving the direction, the Attorney-General must consider any relevant report, notification or recommendation and the results of any relevant inquiries; (b) if the Attorney-General thinks that the public interest requires the proceedings to be dealt with by the Tribunal-the Attorney-General must, in writing, direct that they be dealt with by the Tribunal under subsection 67(1). Commissioner may impose penalty "52B.(1) If, after hearing and determining proceedings, the Commissioner finds an AFP appointee guilty of a breach of discipline, the Commissioner may, subject to subsection (2), impose any penalty on the appointee in respect of the breach that the Commissioner has power to impose in respect of such a breach under the prescribed regulations. "(2) Unless the Commissioner has first complied with subsections (3) and (4), the Commissioner must not impose a penalty under subsection (1) by way of reducing an AFP appointee to a lower rank or level or dismissing the appointee from the Australian Federal Police. "(3) The Commissioner must give the appointee a notice informing the appointee: (a) that the Commissioner considers that it might be appropriate to impose a penalty by way of reducing the appointee to a lower rank or level or dismissing the appointee; and (b) that the appointee may, within 7 days after receiving the notice, give to the Commissioner any written statement that the appointee wishes to be taken into consideration in deciding the appropriate penalty to be imposed. "(4) The Commissioner must take into consideration the matters contained in any statements given in accordance with the notice. "(5) Subsection (2) does not affect the rights of the AFP appointee under sections 74 and 75. Ombudsman to be notified of penalty "52C. If the Commissioner imposes a penalty on an AFP appointee, the Commissioner must, as soon as is practicable, give written notification of the imposition of the penalty to the appointee and the Ombudsman. Ombudsman may inform Attorney-General of penalty "52D. On being notified of the imposition of a penalty, the Ombudsman may, if he or she thinks that the penalty is insufficient, give to the Attorney-General: (a) written notification of the imposition of the penalty; and (b) any written comments the Ombudsman thinks relevant. Appeals "52E. If a penalty is imposed on an AFP appointee by the Commissioner under subsection 52B(1), the AFP appointee or the Attorney-General may appeal against the penalty under section 68 as if it were imposed by the Commissioner under subsection 67(6).". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 17 Charges in respect of breaches of discipline
17. Section 67 of the Principal Act is amended: (a) by omitting subsection (1) and substituting the following subsection: "(1) Subject to section 52A, proceedings must be heard and determined by the Disciplinary Tribunal if the proceedings are begun by the Commissioner against an AFP appointee under the prescribed regulations in respect of a breach of discipline as a result of: (a) an investigation of a complaint that was referred to the Commissioner by the Ombudsman; or (b) an investigation of a complaint that: (i) was referred to the Investigation Division under section 6; and (ii) was not made by a person known by the Commissioner to be an AFP appointee; or (c) an investigation of the actions of the appointee by the Ombudsman under Part III; whether or not also as a result of the appointee not accepting a caution or admonition.";
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(b) by omitting from subsections (2) and (3) "a member" (wherever occurring) and substituting "an AFP appointee"; (c) by omitting from subsections (2) and (3) "the member" (wherever occurring) and substituting "the appointee"; (d) by omitting from subsection (5) "member" (wherever occurring) and substituting "AFP appointee"; (e) by omitting from subsection (7) "a member" and substituting "an AFP appointee"; (f) by omitting from subsections (6) and (7) "the member" (wherever occurring) and substituting "the appointee"; (g) by inserting in subsections (6) and (7) "or she" after "he" (wherever occurring); (h) by inserting in subsections (7) "or her" after "him"; (i) by omitting subsection (9) and substituting the following subsections: "(9) Subject to subsection (10), as soon as practicable after the Disciplinary Tribunal has made its findings in respect of proceedings heard by it under subsection (1), the Commissioner must, unless the identity of the complainant is not known, cause particulars of the decision to be given, in writing, to the complainant. "(10) The Commissioner must not cause particulars of the decision to be given under subsection (9) if the Disciplinary Tribunal makes a decision prohibiting or restricting the disclosure of the findings.". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 18 Powers of Tribunal
18. Section 71 of the Principal Act is amended by inserting in subsection (2) "a member of the Tribunal or" after "signed by". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 19
19. After section 88 of the Principal Act the following section is inserted: Offence of victimisation "88A. A person must not cause, or threaten to cause, detriment to another person ('the victim') on the ground that the victim, or any other person: (a) has made or might make a complaint under this Act; or (b) has given or might give a document or other information to a person under this Act. Penalty: Imprisonment for 6 months.". COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 20 Transitional provision
20. If section 87 of the Principal Act, as in force at any time before the commencement of this Act, applied to a person, section 87 of the Principal Act, as in force at any time after the commencement of section 21, continues to apply to the person. COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 21 Other amendments to extend the application of the Complaints (Australian Federal Police) Act 1981 to AFP appointees
21. The Principal Act is amended as set out in Schedule 1. COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 22 Other amendments to introduce gender-neutral terminology in the Complaints (Australian Federal Police) Act 1981
22. The Principal Act is amended as set out in Schedule 2. COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SECT 23 Other amendments to penalties
23. The Principal Act is amended as set out in Schedule 3. COMPLAINTS (AUSTRALIAN FEDERAL POLICE) AMENDMENT ACT 1994 No. 166 of 1994 - SCHEDULE 1
SCHEDULE 1 Section 21 OTHER AMENDMENTS TO EXTEND THE APPLICATION OF THE COMPLAINTS (AUSTRALIAN FEDERAL POLICE) ACT 1981 TO AFP APPOINTEES Section 4: Repeal, substitute: Meaning of "action taken by AFP appointee" "4. In this Act, unless the contrary intention appears, a reference to action taken by an AFP appointee is a reference to action that the appointee takes or purports to take: (a) because of his or her being an AFP appointee; or (b) in the exercise of powers, or the performance of functions, given to him or her as an AFP appointee by this Act or by another law.". Subsection 5(1):