Commonwealth: Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 (Cth)

Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 No. 84, 2006 An Act to amend the Australian Federal Police Act 1979, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Main amendments Australian Federal Police Act 1979 Schedule 2—Repeal Complaints (Australian Federal Police) Act 1981 Schedule 3—Consequential amendments Administrative Decisions (Judicial Review) Act 1977 Australian Crime Commission Act 2002 Australian Federal Police Act 1979 Crimes Act 1914 Criminal Code Act 1995 Ombudsman Act 1976 Witness Protection Act 1994 Schedule 3A—Consequential amendments to the Australian Security Intelligence Organisation Act 1979 Part 1—Amendments that may not commence Australian Security Intelligence Organisation Act 1979 Part 2—Amendments contingent on the ASIO Legislation Amendment Act 2006 Australian Security Intelligence Organisation Act 1979 Schedule 4—Alcohol screening tests Australian Federal Police Act 1979 Schedule 5—Provisions relating to suspension or resignation from, and termination of, employment Australian Federal Police Act 1979 Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 No. 84, 2006 An Act to amend the Australian Federal Police Act 1979, and for related purposes [Assented to 30 June 2006] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 30 June 2006 2. Schedules 1 to 3 At the same time as section 3 of the Law Enforcement Integrity Commissioner Act 2006 commences. 30 December 2006 3. Schedule 3A, Part 1 At the same time as section 3 of the Law Enforcement Integrity Commissioner Act 2006 commences. Do not commence However, the provision(s) do not commence at all if Schedule 1 to the ASIO Legislation Amendment Act 2006 commences before, or at the same time as, the time at which section 3 of the Law Enforcement Integrity Commissioner Act 2006 commences. 4. Schedule 3A, Part 2 The later of: 30 December 2006 (a) immediately after the commencement of the provision(s) covered by table item 2; and (paragraph (a) applies) (b) immediately after the commencement of Schedule 2 to the ASIO Legislation Amendment Act 2006. 5. Schedules 4 and 5 At the same time as section 3 of the Law Enforcement Integrity Commissioner Act 2006 commences. 30 December 2006 Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Main amendments Australian Federal Police Act 1979 1 After subsection 3A(6) Insert: 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. 2 Subsection 4(1) Insert: 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. 3 Subsection 4(1) Insert: AFP conduct issue has the meaning given by sections 40RH and 40RJ. 4 Subsection 4(1) Insert: AFP conduct or practices issue means: (a) an AFP conduct issue; or (b) an AFP practices issue. 5 Subsection 4(1) Insert: AFP practices issue has the meaning given by section 40RI and 40RJ. 6 Subsection 4(1) Insert: AFP professional standards means professional standards determined under Commissioner's orders made for the purposes of section 40RC. 7 Subsection 4(1) Insert: category 1 conduct has the meaning given by section 40RN. 8 Subsection 4(1) Insert: category 1 conduct issue has the meaning given by subsection 40RL(1). 9 Subsection 4(1) Insert: category 2 conduct has the meaning given by section 40RO. 10 Subsection 4(1) Insert: category 2 conduct issue has the meaning given by subsection 40RL(2). 11 Subsection 4(1) Insert: category 3 conduct has the meaning given by section 40RP. 12 Subsection 4(1) Insert: category 3 conduct issue has the meaning given by subsection 40RL(3). 13 Subsection 4(1) Insert: complainant has the meaning given by subsection 40SA(3). 14 Subsection 4(1) Insert: corrupt conduct: see engages in corrupt conduct. 15 Subsection 4(1) Insert: corruption issue has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006. 16 Subsection 4(1) Insert: engages in corrupt conduct has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006. 17 Subsection 4(1) Insert: give information that raises an AFP conduct or practices issue has a meaning affected by subsection (3). 18 Subsection 4(1) Insert: 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. 19 Subsection 4(1) Insert: 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). 20 Subsection 4(1) Insert: 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. 21 Subsection 4(1) Insert: practices or procedures of the Australian Federal Police has the meaning given by subsection 40RI(3). 22 Subsection 4(1) Insert: remedial action has the meaning given by section 40TD. 23 Subsection 4(1) Insert: termination action has the meaning given by section 40TE. 24 Subsection 4(1) Insert: training and development action has the meaning given by section 40TC. 25 At the end of section 4 Add: (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. 26 Section 35 Omit "The Commissioner", substitute "(1) The Commissioner". 27 At the end of section 35 Add: (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. 27A Section 39 Repeal the section, substitute: 39 Compliance with Commissioner's Orders An AFP appointee must comply with Commissioner's Orders. 27B Section 40 Repeal the section, substitute: 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. 27C Subsection 40A(1) Omit "an AFP employee, a special member or a special protective service officer", substitute "an AFP appointee". 27D Subsection 40A(2) Omit "the employee, special member or special protective service officer", substitute "the AFP appointee". 27E At the end of section 40H Add: (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). 28 After Part IV Insert: 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