Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Hansard source

by leave—I move government amendments (1) to (12):

(1)   Clause 2, page 1 (line 7) to page 2 (line 6), omit the clause, substitute:

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.
2.  Schedules 1 to 3	At the same time as section 3 of the Law Enforcement Integrity Commissioner Act 2006 commences.
3.  Schedule 3A, Part 1	At the same time as section 3 of the Law Enforcement Integrity Commissioner Act 2006 commences. 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: (a) immediately after the commencement of the provision(s) covered by table item 2; and (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.

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.

(2)    Schedule 1, page 7 (after line 18), after item 27, insert:

27A  Section 39

Repeal the section, substitute:

39  Compliance with Commissioner’s Orders

                 An AFP appointee must comply with Commissioner’s Orders.

(3)    Schedule 1, page 7, after proposed item 27A, insert:

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.

(4)    Schedule 1, page 7, after proposed item 27B, insert:

27C  Subsection 40A(1)

Omit “an AFP employee, a special member or a special protective service officer”, substitute “an AFP appointee”.

(5)    Schedule 1, page 7, after proposed item 27C, insert:

27D  Subsection 40A(2)

Omit “the employee, special member or special protective service officer”, substitute “the AFP appointee”.

(6)    Schedule 1, page 7, after proposed item 27D, insert:

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).

(7)    Schedule 1, item 28, page 10 (line 24), after “Deputy Commissioner”, insert “, or senior executive AFP employee who is at a level equivalent to that of a Deputy Commissioner,”.

(8)    Schedule 1, page 49 (after line 13), at the end of the Schedule, add:

30  Determining categories of AFP conduct issues

For the purpose of subsection 40RM(1) of the Australian Federal Police Act 1979 (as inserted by this Schedule), the Commissioner and the Ombudsman must try to jointly determine, within 3 months after the commencement of this Schedule, that conduct of a particular kind is to be:

             (a)    category 1 conduct; or

             (b)    category 2 conduct; or

             (c)    category 3 conduct;

for the purposes of that Act.

(9)    Schedule 3, items 4 and 5, page 51 (lines 17 to 20), omit the items.

(10)  Schedule 3, item 22, page 53 (line 6), after “any action”, insert “(other than action to terminate employment under section 28 of this Act to which the Workplace Relations Act 1996 would otherwise apply)”.

(11)  Schedule 3, items 25 to 32, page 53 (line 14) to page 55 (line 28), omit the items.

(12)  Page 64 (after line 24), after Schedule 3, insert:

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

1  Subsection 34D(4) (note 2)

Omit “and the Ombudsman”, substitute “, the Ombudsman and a person referred to in paragraph 40SB(3)(b) of the Australian Federal Police Act 1979”.

2  Subparagraph 34E(1)(e)(ii)

Repeal the subparagraph, substitute:

                  (ii)    to the Ombudsman under the Ombudsman Act 1976 in relation to the Australian Federal Police;

3  After paragraph 34E(1)(e)

Insert:

           (ea)    the person’s right to give information orally or in writing, under Division 2 of Part V of the Australian Federal Police Act 1979, to a person referred to in subsection 40SA(1) of that Act in relation to the Australian Federal Police;

4  Paragraphs 34F(9)(b) and (c)

Repeal the paragraphs, substitute:

             (b)    subsection (8) does not affect the operation of sections 10 and 13 of the Inspector-General of Intelligence and Security Act 1986 in relation to contact between the person and the Inspector-General of Intelligence and Security; and

             (c)    anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Inspector-General of Intelligence and Security to make a complaint orally under section 10 of the Inspector-General of Intelligence and Security Act 1986 if the person requests them; and

             (d)    subsection (8) does not affect the operation of section 7 of the Ombudsman Act 1976 in relation to contact between the person and the Ombudsman in respect of a complaint, or proposed complaint, about the Australian Federal Police; and

             (e)    anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Ombudsman to make a complaint orally under section 7 of the Ombudsman Act 1976 if the person requests them; and

              (f)    subsection (8) does not affect the operation of section 40SB of the Australian Federal Police Act 1979 in relation to contact between the person and a person referred to in paragraph 40SB(3)(b) of that Act; and

             (g)    anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Commissioner of the Australian Federal Police to give information orally under section 40SA of the Australian Federal Police Act 1979 if the person requests them.

5  Subsection 34F(9) (note)

Repeal the note, substitute:

Note:   The sections mentioned in paragraphs (9)(b), (d) and (f) give the person an entitlement to facilities for making a written complaint or for giving written information.

6  Paragraph 34NB(4)(b)

Omit “paragraph 34F(9)(c)”, substitute “paragraph 34F(9)(c), (e) or (g)”.

7  Section 34NC

Repeal the section, substitute:

34NC  Complaints and information about contravention of procedural statement

        (1)    Contravention of the written statement of procedures mentioned in section 34C of this Act may be the subject of:

             (a)    a complaint to the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986; or

             (b)    a complaint to the Ombudsman under the Ombudsman Act 1976; or

             (c)    information given under Division 2 of Part V of the Australian Federal Police Act 1979 to a person referred to in subsection 40SA(1) of that Act.

        (2)    This section does not limit:

             (a)    the subjects of complaint under:

                   (i)    the Inspector-General of Intelligence and Security Act 1986; or

                  (ii)    the Ombudsman Act 1976; or

             (b)    the subject of information given under Division 2 of Part V of the Australian Federal Police Act 1979.

8  Subsection 34T(2)

Repeal the subsection, substitute:

        (2)    This Division does not affect a function or power of the Ombudsman under the Ombudsman Act 1976 in relation to the Australian Federal Police.

        (3)    This Division does not affect a function or power of a person under Part V of the Australian Federal Police Act 1979.

9  Subsection 34VAA(5) (subparagraph (a)(iv) of the definition of permitted disclosure)

Repeal the subparagraph, substitute:

                 (iv)    exercising a power (including a power to make a complaint or to give information), or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986, the Ombudsman Act 1976 or Part V of the Australian Federal Police Act 1979;

Part 2—Amendments contingent on the ASIO Legislation Amendment Act 2006

Australian Security Intelligence Organisation Act 1979

10  Subsection 34G(5) (note 2)

Omit “and the Commonwealth Ombudsman”, substitute “, the Ombudsman and a person referred to in paragraph 40SB(3)(b) of the Australian Federal Police Act 1979”.

11  Subparagraph 34J(1)(e)(ii)

Repeal the subparagraph, substitute:

                  (ii)    to the Ombudsman under the Ombudsman Act 1976 in relation to the Australian Federal Police;

12  After paragraph 34J(1)(e)

Insert:

           (ea)    the person’s right to give information orally or in writing, under Division 2 of Part V of the Australian Federal Police Act 1979, to a person referred to in subsection 40SA(1) of that Act in relation to the Australian Federal Police;

13  Paragraph 34K(9)(b)

Repeal the paragraph, substitute:

             (b)    the person informs the prescribed authority that the person wants:

                   (i)    to make an oral or written complaint of the kind referred to in paragraph 34J(1)(e); or

                  (ii)    to give oral or written information of the kind referred to in paragraph 34J(1)(ea); and

14  Paragraph 34K(9)(c)

After “the complaint”, insert “or give the information”.

15  At the end of subsection 34K(9)

Add “or giving the information”.

16  Paragraphs 34K(11)(b) to (e)

Repeal the paragraphs, substitute:

             (b)    subsection (10) does not affect the operation of sections 10 and 13 of the Inspector-General of Intelligence and Security Act 1986 in relation to contact between the person and the Inspector-General of Intelligence and Security; and

             (c)    anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Inspector-General of Intelligence and Security to make a complaint orally under section 10 of the Inspector-General of Intelligence and Security Act 1986 if the person requests them; and

             (d)    subsection (10) does not affect the operation of section 7 of the Ombudsman Act 1976 in relation to contact between the person and the Ombudsman in respect of a complaint, or proposed complaint, about the Australian Federal Police; and

             (e)    anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Ombudsman to make a complaint orally under section 7 of the Ombudsman Act 1976 if the person requests them; and

              (f)    subsection (10) does not affect the operation of section 40SB of the Australian Federal Police Act 1979 in relation to contact between the person and a person referred to in paragraph 40SB(3)(b) of that Act; and

             (g)    anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Commissioner of the Australian Federal Police to give information orally under section 40SA of the Australian Federal Police Act 1979 if the person requests them; and

             (h)    subsection (10) does not affect the person’s right to make a complaint to a complaints agency in relation to the police force or police service of the State or Territory concerned; and

              (i)    anyone holding the person in custody or detention under this Division must give the person facilities for contacting a complaints agency to make an oral or written complaint of the kind mentioned in paragraph (h) if the person requests them.

Note:   The sections mentioned in paragraphs (11)(b), (d) and (f) give the person an entitlement to facilities for making a written complaint or for giving written information.

17  After subparagraph 34R(13)(b)(ii)

Insert:

                (iia)    the person to give information of the kind referred to in paragraph 34J(1)(ea); or

18  Paragraph 34ZF(4)(b)

Omit “paragraph 34K(11)(d) or (e)”, substitute “paragraph 34K(11)(c), (e), (g) or (i)”.

19  Section 34ZG

Repeal the section, substitute:

34ZG  Complaints and information about contravention of procedural statement

        (1)    Contravention of the written statement of procedures in force under section 34C may be the subject of:

             (a)    a complaint to the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986; or

             (b)    a complaint to the Ombudsman under the Ombudsman Act 1976; or

             (c)    information given under Division 2 of Part V of the Australian Federal Police Act 1979 to a person referred to in subsection 40SA(1) of that Act.

        (2)    This section does not limit:

             (a)    the subjects of complaint under:

                   (i)    the Inspector-General of Intelligence and Security Act 1986; or

                  (ii)    the Ombudsman Act 1976; or

             (b)    the subject of information given under Division 2 of Part V of the Australian Federal Police Act 1979.

20  Subsection 34ZN(2)

Repeal the subsection, substitute:

        (2)    This Division does not affect a function or power of the Ombudsman under the Ombudsman Act 1976 in relation to the Australian Federal Police.

        (3)    This Division does not affect a function or power of a person under Part V of the Australian Federal Police Act 1979.

21  Subsection 34ZS(5) (subparagraph (a)(iv) of the definition of permitted disclosure)

Repeal the subparagraph, substitute:

                 (iv)    exercising a power (including a power to make a complaint or to give information), or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986, the Ombudsman Act 1976 or Part V of the Australian Federal Police Act 1979;

22  After paragraph 34ZX(5)(a)

Insert:

           (aa)    any information the person gives that is of a kind mentioned in paragraph 34J(1)(ea); or

I present a supplementary explanatory memorandum to the bill. This bill forms the third element of the package of three bills that will introduce major reforms in the handling of corruption issues and other issues relating to misconduct in Australian government law enforcement. The government introduced this legislation late in March. The bills were referred to the Senate Legal and Constitutional Legislation Committee for examination and report. I have already spoken generally about the committee’s review when introducing government amendments to the Law Enforcement Integrity Commissioner Bill 2006.

Before discussing the proposed amendments I would like to comment briefly on the committee’s recommendations 13 and 15, which are not expressly addressed in the amendments. Recommendation 13 proposes that the lower level disciplinary matters, categories 1 and 2, should be subject to internal review while more serious matters, category 3, should be the subject of external review—for example, through the Administrative Appeals Tribunal. The government considers that adequate provision for review can be effectively achieved without express provision. An AFP internal review mechanism for category 1 and category 2 issues is planned. This does not require legislative backing, especially in view of the non-punitive character of the responses. There are existing mechanisms for external review under the Workplace Relations Act 1996 of decisions to terminate employment in response to recommendations arising from category 3 investigations. The proposed amendments of item 10 will ensure that these will be preserved. Review by the Administrative Appeals Tribunal is therefore not required.

Recommendation 15 is that the bill clarify that the professional standards regime applies to the Commissioner of the Australian Federal Police. The government agrees in principle with the proposition that the commissioner should be expected to comply with professional standards; however, because of the unique position of the commissioner within the AFP and the regime established by the proposed new part 5 of the act, it is impractical to legislate specifically for this purpose. Under the AFP Act the commissioner may be dismissed by the Governor-General for misbehaviour. It is not desirable to define misbehaviour, but a failure to comply with professional standards that the commissioner requires others to meet would clearly be relevant to the possible use of the dismissal power.

Amendments (2) to (5) and (9) remedy an omission from the bill. They effectively substitute references to ‘an AFP appointee’ for references to an AFP employee, a special member or a special protective service officer in the relevant sections of the AFP Act. This change helps to give effect to the government’s intention that the new professional standards regime should apply to all AFP appointees. The definition of AFP appointee that the bill will insert in the AFP Act will include not only AFP employees, special members and special protective service members but also a deputy commissioner, a person engaged overseas, a consultant or a contractor designated by the commissioner as an AFP employee and a secondee to the AFP.

Amendment (6) will remedy an omission from the bill by inserting a new item in schedule 1 expressly providing that the commissioner may at any time revoke a determination that an AFP employee is to perform duties at a place outside Australia. The amendment clarifies that the commissioner has power to recall an AFP employee from an overseas posting at any time despite any indication in the initial determination that the posting was intended to be for a specified period.

Amendment (7) schedule 1, item 2 constitution of a unit undertaking professional standards functions: this item amends proposed new section 40RE of the AFP Act to provide that if the commissioner so directs, the head of the AFP professional standards unit is responsible directly either to a specified deputy commissioner, as at present, or a specified senior executive AFP employee of equivalent level. It will provide administrative flexibility in an organisation where non-sworn staff may now serve at all levels and reflects the fact that the regime administered by the professional standards unit governs the conduct of all AFP employees, not only sworn members.

Amendment (8) partly implements the Senate committee’s recommendation 12. It requires the AFP Commissioner and the Ombudsman to try to make a determination as to particular kinds of conduct that are to be categories 1, 2 and 3 conduct for the purpose of the bill within three months after commencement of schedule 1. The committee recommended that the bill be amended to compel the Ombudsman and the commissioner to make a determination of categories of conduct within three months of the commencement of the act. The government’s view is that it is not practical to legislate to compel agreement.

Amendment (10) implements the Senate committee’s recommendation 14 and will ensure the current position on review of action to terminate employment under section 28 is preserved. Section 69B of the AFP Act currently provides that the Workplace Relations Act, with certain exceptions, does not apply in relation to discipline of AFP employees. This does not preclude appeals under the Workplace Relations Act against termination of employment under section 28 of the AFP Act.

The amendment to amendment (22) of schedule 3 of the bill would replace the reference to discipline in section 69B with reference to a matter covered by the proposed new part 5 of the AFP Act or any action taken in relation to a matter covered by that part. This amendment will clarify, by inserting an express provision, that the new wording of section 69B is not intended to preclude the operation of the Workplace Relations Act in relation to terminating employment of an AFP employee under section 28 after an investigation under part 5 of the Workplace Relations Act, if the Workplace Relations Act would have otherwise applied.

The main purpose of amendments (1), (11) and (12) is to allow the impending amendment of the Australian Security Intelligence Organisation Act 1969 by the ASIO Legislation Amendment Bill 2006, which completed its passage through parliament on 13 June 2006. Amendments (25) to (30) of schedule 3 of the bill provide for an amendment to various provisions of part 3 of division 3 of the ASIO Act in its present form. Part 3 of division 3 deals with the special powers relating to terrorism offences. The relevant provisions of the ASIO Act are intended to ensure that persons in custody or detained for questioning under part 3 of division 3 are advised of and entitled to facilities to exercise their rights to complain about actions taken by the AFP, despite the general prohibition on their contacting outside persons. The rights referred to arise under the Complaints (Australian Federal Police) Act 1981, which will be repealed by the present bill.

The effect of the existing amendments (25) to (32) of schedule 3 of the bill would be to replace references to making a complaint to the Ombudsman under the complaints act with references to making a complaint to the Ombudsman under the Ombudsman Act or giving information to the commissioner or an investigator under the proposed new part 5 of division 2 of the AFP Act.

Amendment (11) would omit existing items 25 to 32 of schedule 3 and item 12 would substitute a new schedule 3A in two parts. Part 1 would replicate the omitted items from schedule 3. Part 2 would make similar amendments to the ASIO Act as amended by the ASIO Legislation Amendment Bill. Item 1 amends the bill’s commencement provisions to ensure that, subject to the commencement date of this bill, part 1 of schedule 3A will operate before the commencement of the ASIO Legislation Amendment Bill and part 2 of schedule 3A will operated thereafter. The opportunity has been taken to correct a small number of errors and omissions in the existing items 25 to 32 of schedule 3 and the process of translating them to schedule 3A. The details of these changes are set out in the explana

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