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2016-17
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMES LEGISLATION AMENDMENT (INTERNATIONAL CRIME
COOPERATION AND OTHER MEASURES) BILL 2016
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Minister for Justice, the Hon Michael Keenan MP)
AMENDMENTS TO THE CRIMES LEGISLATION AMENDMENT
(INTERNATIONAL CRIME COOPERATION AND OTHER MEASURES) BILL
2016
(Government)
GENERAL OUTLINE
1. The purpose of these amendments to the Crimes Legislation Amendment
(International Crime Cooperation and Other Measures) Bill 2016 (the Bill) is to
require the Australian Federal Police (AFP) to make the relevant standards for
internal drug and alcohol testing freely and readily available to all AFP appointees. It
will also clarify and enhance processes for resignation in cases of serious misconduct
or corruption.
2. The amendments to Schedule 8 of the Bill will:
insert a new provision that requires the AFP to make drug and alcohol testing
standards freely and readily available to all AFP appointees, and
extend the maximum length of time the AFP Commissioner is authorised to
postpone an employee's date of resignation from 90 days to 150 days while
under investigation for serious misconduct or corruption.
FINANCIAL IMPACT
3. The amendments will have no financial impact on Government revenue.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Crimes Legislation Amendment (International Crime Cooperation and Other
Measures) Bill 2016
4. The amendments to Schedule 8 of the Bill are compatible with the human rights and
freedoms recognised or declared in the international instruments listed in section 3 of
the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
5. The amendments to Schedule 8 of the Bill will require the AFP to make relevant
standards for drug and alcohol testing available to all AFP appointees. This will
ensure that all persons who are bound by the standards will be able to freely and
readily access the standard that must be adhered to for alcohol and drug testing.
6. The amendments will also extend the length of time the AFP Commissioner is
authorised to extend an employee's date of resignation in certain cases, including
where there is an ongoing investigation into the employee's conduct.
Human rights implications
7. The amendments in Schedule 8 engage the right to work and rights in work. The
right to work and rights in work is contained in articles 6(1), 7 and 8(1)(a) of the
International Covenant on Economic, Social and Cultural Rights (ICESCR).
8. Article 7 of the ICESCR recognises the right of everyone to just and favourable
conditions of work.
9. The amendments will extend the length of time the AFP Commissioner is authorised
to postpone an employee's date of resignation in certain cases, including where there
is an ongoing investigation into the employee's conduct.
10. The power to extend an employee's date of resignation already exists in the AFP Act.
The amendments extend the length of time from a maximum of 90 to a maximum of
150 days.
11. Appropriate safeguards exist for this power. The Commissioner's power can only be
used in the most serious cases of alleged and determined breaches--for example,
cases involving serious misconduct, breach of criminal law, serious neglect of duty or
allegations of corruption.
12. To support this, the decision to extend an employee's date of resignation will be
made at a sufficiently senior level. Only the AFP Commissioner or his/her delegate
will be authorised to postpone resignation.
13. Further, after the initial deferral of resignation for 90 days, the Commissioner will be
authorised to approve an extension of up to 30 days, up to two times. This ensures
that extensions beyond the initial 90 days are only sought in cases where the
Commissioner is satisfied it is justified.
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14. The resignation provisions will also be reviewed 5 years after commencement to
ensure they are operating as intended and only being used in appropriate
circumstances.
15. It is appropriate to extend the length of time available to the Commissioner to ensure
that the AFP Professional Standards is able to finalise internal investigations before
an employee resigns.
16. If an employee is able to resign before an internal investigation has been finalised by
the AFP Professional Standards or the Commissioner has made a decision about
termination, their record will not reflect the findings of the investigation.
17. This is an appropriate and reasonable extension to better support the AFP's integrity
framework. Information about termination of employment for serious misconduct is
critical to mitigate integrity and security risks, particularly given the breadth of
government agencies that are involved in combating crime. The amendment also
contributes to broader public sector resilience to the 'insider threat'.
18. The amendments to Schedule 8 are compatible with human rights.
Conclusion
19. The amendments to Schedule 8 are compatible with human rights.
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NOTES ON AMENDMENTS
Australian Federal Police Act 1979
Amendment 1: Item 15, page 111 (after line 28) Section 40P
20. Item 15 of Schedule 8 inserts a new provision at the end of subsection 40P(2) of the
AFP Act, requiring the AFP Commissioner to ensure the relevant standards used for
alcohol and drug testing at the AFP are freely and readily available to all AFP
appointees.
21. If regulations made for the purposes of section 40LA, 40M and 40N of the AFP Act
(relating to alcohol and drug testing) incorporate any matter contained in a standard
published by, or on behalf of, Standards Australia or Standards Australia/Standards
New Zealand as in force at a particular time or as in force from time to time, the
matter contained in the standard must be made available to all appointees.
22. The drug and alcohol testing provisions in section 40LA, 40M and 40N are applicable
only to AFP appointees, and not the general public.
23. Item 15 provides that the AFP Commissioner is not required to make the matter
contained in a standard available to AFP appointees if it cannot be made so available
without infringing copyright.
24. This is an important provision to ensure AFP is not in breach of its copyright
obligations.
Amendment 2: Item 20, page 113 (lines 3 and 4) Section 30A(2)
25. Item 20 of Schedule 8 amends the length of time the AFP Commissioner is
authorised to extend an employee's date of resignation in certain cases, including
where there is an ongoing investigation into the employee's conduct.
26. Item 20 extends the length from 90 days to a total maximum of 150 days. This is
given effect through two separate powers - the existing power to postpone
resignation to a total maximum of 90 days (which can be effected through multiple
notices to the employee), and an additional power to postpone resignation beyond 90
days through no more than two extensions of a maximum 30 days each.
27. In addition to the current maximum deferral of 90 days, the Commissioner can, on
up to two occasions, approve an extension to defer resignation for up to 30 days
under proposed subsection 30A(6). This allows a total maximum possible
postponement of 150 days. Pursuant to proposed subsections 30A(8) and 30A(9), the
period of each extension is counted from the end date of the most recent notice
(whether that most recent notice was given under the existing mechanism in
subsection 30A(2) or the new mechanism in proposed subsection 30A(6)).
28. The Commissioner must approve the two 30 day maximum extension periods
separately.
29. The two 30 day maximum extensions ensure that the decision to extend an
employee's resignation is carefully considered each time.
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30. Section 30A(10) provides that on or before the day specified in the most recent
notice given under section 30A (whether that most recent notice was given under the
existing mechanism in subsection 30A(2) or the new mechanism in proposed
subsection 30A(6)), the Commissioner must accept the AFP employee's notice of
resignation or terminate the AFP employee's employment.
31. As with current section 30A(2) of the AFP Act, the Commissioner may only use the
new power in subsections 30A(6) in relation to category 3 conduct (as defined under
the Australian Federal Police Categories of Conduct Determination 2013) and/or
corruption investigations. For example, in investigating cases involving serious
misconduct, breach of criminal law or serious neglect of duty.
32. The Commissioner may extend the date of resignation for a number of reasons.
These include:
a) if the investigation has been completed--the Commissioner is considering
terminating the employee's employment under section 28 of the Act on the
basis of the findings of the investigation;
b) 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 of the Act because the findings of the investigation are not yet
known;
c) the Commissioner is satisfied that the employee's conduct may amount to
serious misconduct within the meaning of subsection 40K(3) of the Act.
33. The extension provisions are an important part of the AFP integrity framework. If an
employee is able to resign before an internal investigation has been finalised by the
AFP Professional Standards (PRS) or the Commissioner has made a decision about
termination, their record will not reflect the findings of the investigation.
34. Without a record of the outcome of the investigation or termination, other agencies
may be vulnerable to employing former AFP appointees who have breached the
AFP's integrity standards.
35. In some cases, 90 days may be insufficient time for AFP Professional Standards
(PRS) to finalise an investigation.
36. An investigation can take well over 90 days to complete. The AFP Act requires PRS
investigators to afford the subject of the investigation the opportunity to respond to
issues raised throughout the investigation (the natural justice component of such
investigations as outlined in section 40TQ of the Act).
37. The natural justice component of such investigations can take 90 days in and of
itself. Unavoidable delays may occur due to the subject of the investigation being
unwell or seeking legal advice. If terminating employment, time must also be set
aside for a notice period for the affected appointee to show cause.
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38. Under the current legislation, if, at the end of the 90 day period, PRS has not
concluded its investigation, the AFP is unable to terminate employment for serious
misconduct under section 40K of the Act.
39. The extension to the existing 90 day period is justified to ensure a balance between
affording natural justice in investigations and allowing the AFP sufficient time to
complete investigations.
40. This amendment is also necessary to allow misconduct investigations to be
undertaken effectively, and to avoid a resignation rendering key investigative
powers inaccessible. For example, once an employee resigns, they can no longer be
compelled to provide information to AFP investigators.
41. Additionally, while separate criminal investigations can continue after resignation,
some instances of serious misconduct are more appropriate for PRS investigation.
For example, PRS misconduct may not necessarily fall within the scope of any
criminal offence. Further, most of the information obtained in a PRS investigation is
inadmissible in criminal proceedings.
42. Whilst the new power of the Commissioner under subsection 30A(6) to extend the
resignation date is administrative in nature, merits review of that decision is not
justified in the circumstances.
43. Providing the AFP Commissioner with the ability to make two 30 day maximum
extensions is based on a similar rationale as, and extends the original deferral of
resignation for 90 days provided for under, the current subsection 30A(2).
44. Any decision of the Commissioner to defer the resignation date of an employee is a
procedural decision that facilitates recording an outcome of the investigation or
termination by providing PRS with sufficient time to finalise investigations on
serious misconduct or potential corruption.
45. Any review of the Commissioner's decision could lead the proper operation of the
decision-making process on the substantive investigation and termination to be
unnecessarily delayed.
46. The proposed subsection 30A(12) provides for the review of the operation of the
proposed amended section as soon as practicable after the fifth anniversary of its
commencement. A report of the review must also be provided to the Minister at that
time. This is to ensure the proper operation of the power and to ensure the provisions
remain fit for purpose.
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