Australian Federal Police (Approval of Screening Devices) Instrument 2021

The instrument rests on a narrow set of statutory and operational concepts explicitly stated in its short text. The legal hook is section 40R of the Act; the instrument is made "under section 40R of the Australian Federal Police Act 1979" (instrument header). The operative concept is an "approved screening device", which the instrument defines only by listing devices and categories that satisfy subsection 40R(1) for the purposes of that Act (s 4). There is no extended definition of "screening", "breath screen", "breath screening", "approved", "approval", "exhaled into", "external territory", or "foreign country" within this instrument; those words are used in ordinary terms and in the context of the cross‑reference to the Act (s 4).

Three concrete categories emerge from s 4:

• Named models: two specific devices are approved by name, the Lion Alcolmeter SD‑400 and the Alcolizer LE (s 4(a)-(b)).

• State/territory‑approved exhalation devices within Australia: any device that is "exhaled into and has been approved for the purpose of indicating whether alcohol is present in the blood of a person" under the law of the state or territory in which the breath screen is conducted (s 4(c)(i)). This introduces cross‑jurisdictional recognition of state/territory statutory or regulatory approvals as a basis for federal approval in that location.

• State/territory‑approved exhalation devices for external territories and foreign country use: the same phrase applied to devices "in an external territory or a foreign country under the law of a state or territory" (s 4(c)(ii)). That wording links approval for use in external territories or foreign countries to the law of an Australian state or territory, rather than to foreign law directly.

The instrument therefore combines specific federal approvals (the two models) with a delegated recognition mechanism that imports state or territory approvals for devices used in specific geographic or jurisdictional circumstances (s 4(c)(i)-(ii)). The instrument is short and purpose‑limited: it does not prescribe operational standards, recordkeeping, or how the Act treats results from an "approved screening device"; it confines itself to naming devices and revoking the prior approval instrument (ss 3-4).

The instrument affects a narrow but practically significant set of actors and decisions. It directly affects the Australian Federal Police in so far as the AFP will rely on the list to determine which breath‑screening devices meet the statutory label "approved screening device" for purposes of the Act (instrument header; s 4). AFP operational units that procure, maintain, deploy or rely on breath screening devices will need to reference the list in s 4 when selecting equipment for use in the course of AFP powers that require an approved screening device.

Manufacturers, distributors and suppliers of breath‑screening equipment are affected. The instrument names two specific device models, which produces a clear commercial advantage to users of those models for AFP use (s 4(a)-(b)). Any supplier of a device that is exhaled into and that holds state or territory approval for the purpose of indicating whether alcohol is present will also be affected, because such approvals are incorporated by reference into the federal approval regime for the locations described (s 4(c)). That creates a route to inclusion in the AFP's approved list without federal testing if the device is approved under relevant state/territory law.

State and territory governments are relevant third parties because their device approvals are determinative under s 4(c). Where a breath screen is conducted "in the law of a state or territory" the instrument treats a device approved under that state or territory law as an approved device for the AFP. The wording also implicates state or territory law where breath screening occurs in an external territory or in a foreign country "under the law of a state or territory" (s 4(c)(ii)). Those phrases make state and territory administrative decisions effectively portable into the federal approval regime for the contexts described.

Individuals subjected to AFP breath screening are indirectly affected, because the instrument narrows the set of devices that may be used and therefore influences the technology, procedures and chain of custody in breath screening. The instrument does not spell out rights or evidentiary consequences for those individuals; it simply enumerates device approvals.

Procurement and logistics units within the AFP and other Commonwealth agencies will be operationally affected. The instrument revokes a prior instrument (s 3) and replaces the approved device list, so inventory, procurement specifications, training and maintenance arrangements may need updating to align with the new list (ss 2-4). Finally, legal advisers, defence counsel and compliance officers are affected in that the instrument defines the universe of "approved screening devices" they must consider when advising on the use or challenge of breath‑screening in AFP operations, but the instrument itself contains no procedural detail beyond device approval (s 4).

The instrument itself does not create new duties or rights in procedural or penal terms; instead, it declares which devices qualify as "approved screening devices" for the purposes of subsection 40R(1) of the Act (s 4). The key legal consequence is therefore indirect: duties and powers elsewhere in the Act that hinge on the existence of an "approved screening device" must be exercised using a device listed in s 4. The instrument signals to AFP decision makers which equipment satisfies the statutory label and therefore may lawfully be used where the Act requires an "approved screening device".

Concretely, the instrument imposes an obligation on AFP procurement and operational decision makers to ensure that devices deployed as "approved screening devices" are either one of the two named models, or are a device that is "exhaled into" and has the requisite state/territory approval for the purpose of indicating whether alcohol is present in the blood of the person being screened, including in external territories or foreign countries under the specified state or territory law (s 4). This creates a duty of verification where a device relies on state/territory approval: before using such a device in a particular place, the relevant AFP actor must confirm the device has the approval required by s 4(c).

The instrument confers no express individual rights (for those screened) such as notice, testing choices, or review mechanisms. It likewise does not set out any rights for manufacturers beyond inclusion on the list. The only substantive right‑like effect is that use of a device on the s 4 list will satisfy the statutory prerequisite of being an "approved screening device" for subsection 40R(1). The instrument is silent on how evidence produced by an approved device is to be treated in later proceedings; any duties to preserve, calibrate or report results are outside the text.

Operationally, the AFP gains clarity (within the limits of the list) about which devices it may use in exercising powers tied to "approved screening device" status. This reduces uncertainty about device identity but not about ancillary matters (for example calibration schedules, training, operator competence, field checks), because the instrument contains no such provisions. The revocation of the prior instrument (s 3) creates a transitional duty for AFP administrators to ensure existing equipment remains authorised under the new list or is replaced if it is not.

This instrument does not itself prescribe penalties, sanctions or a separate enforcement regime. It is an approval instrument naming devices that qualify as "approved screening devices" for the purposes of subsection 40R(1) of the Act (s 4). Any penalties or enforcement measures that might flow from the use, misuse or non‑use of an approved device must therefore be located in the Act or in other legislative or administrative instruments; they are not found within this instrument.

Because the instrument takes the form of a delegated legislative instrument under s 40R, compliance with it will be enforced through the AFP's operational and administrative mechanisms rather than by criminal sanctions created by this instrument. The instrument provides no enforcement mechanism, supervisory regime, inspector powers, or penalties for misclassification or misuse of devices. It also contains no provision dealing with consequences where an AFP officer uses a device not listed in s 4, nor any direction on how evidence obtained from an unapproved device is to be treated.

The only express statutory connection to enforcement is the cross‑reference in the header and s 4 to subsection 40R(1) of the Act. Any penalties that apply when powers tied to use of an "approved screening device" are exercised, or any admissibility rules for results, must therefore be sourced to the Act or other relevant instruments and policies. The instrument's revocation clause (s 3) replaces a prior instrument; that change could have practical enforcement implications if AFP personnel continued to rely on devices authorised only by the revoked instrument. Ensuring conformity with the new list is an administrative compliance step; the instrument itself speaks to approval status only.

In sum, this instrument is an enabling and declarative measure. It names approved devices; it does not create or modify a penalty framework, nor does it detail enforcement procedures. Agencies and officers should therefore look to the Act and operational directives for penalties and enforcement mechanisms that intersect with the approval set out here.

The instrument expressly interacts with the Australian Federal Police Act 1979 through its enabling provision. It is made "under section 40R" of that Act (instrument header), and s 4 explicitly refers to "subsection 40R(1) of the Act" as the context in which the listed devices are "approved screening devices". Therefore, the instrument is a subordinate instrument that supplies a specification required by the Act: the identity of approved screening devices.

Beyond that, the instrument imports and recognises approvals granted under state and territory law. Paragraph 4(c) explicitly accepts as an "approved screening device" any device "that is exhaled into and has been approved for the purpose of indicating whether alcohol is present in the blood of a person" under either (i) the law of the state or territory in which the breath screen is conducted, or (ii) in an external territory or a foreign country "under the law of a state or territory" (s 4(c)(i)-(ii)). These cross‑references create a federal recognition mechanism anchored to state/territory approvals. The instrument therefore operates at the intersection of federal delegated rulemaking and state/territory administrative approvals for breath‑screening devices.

The instrument does not purport to alter or displace those state or territory laws; it treats them as sources of approval that, when present, suffice for federal approval in the circumstances described. It also does not purport to create a uniform national technical standard; it only accepts the existence of a state/territory approval as determinative for federal purposes in the location where the breath screen is conducted or for external territories/foreign settings as linked to state/territory law (s 4(c)). This design means that divergence in standards between jurisdictions will be carried into AFP practice to the extent the AFP uses devices that rely on state/territory approvals.

The instrument does not reference other federal statutes, regulations, evidentiary rules, privacy laws, export/import controls, or international agreements. It does not address conflicts between state approvals and any federal requirement. Where a device approved under state law might conflict with federal requirements or operational policies, the instrument is silent; any such conflicts would need to be resolved by reference to the Act, implementing policies, or legal advice outside this instrument.

Finally, by revoking the prior s 40R approval instrument dated 09/06/2011 (s 3), the instrument alters the body of delegated law applicable to AFP device approvals, which may affect the legal status of actions taken under the previous instrument where continuity was assumed. The instrument itself contains no transitional or savings provision; the practical interaction therefore relies on administrative measures to align practice with the new list.

The instrument is short and contains an explicit revocation of an earlier instrument. It was made on 3 March 2021 and commences on the day after registration (covering text; s 2). Paragraph 3 is the sole amendment‑history action within the instrument: it revokes "Australian Federal Police Act 1979 - Section 40R - Approval of Screening Device (09/06/2011)" (s 3). Apart from that revocation, there are no other amendments or historical notes within the instrument.

Because the instrument itself is the mechanism by which the Minister exercises the power in s 40R to approve devices, its amendment history is simply the sequence of such instruments. The 2021 instrument replaces the 2011 instrument. The instrument contains no transitional provisions, saving clauses or express reference to whether devices approved under the 2011 instrument remain authorised pending replacement; it simply revokes the prior instrument (s 3). Implementers must therefore infer that the device universe for "approved screening device" purposes is now defined solely by the 2021 instrument as of its commencement date (s 2-3-4).

The instrument does not record any prior amendments to the 2011 instrument, nor does it list subsequent amending instruments. If future amendments are required to add or remove devices from the list in s 4, those will be made by separate instruments under the same enabling power (section 40R). The instrument’s revocation of the specific 2011 instrument is the only explicit historical act documented in its text.

For legal teams, compliance officers and procurement units, the immediate amendment‑history takeaway is: do not rely on the 2011 instrument after the 2021 instrument commences; align operations with the list contained in s 4 of the 2021 instrument. Any legacy reliance on other approvals will require administrative confirmation that the device appears in s 4, or that it is covered by s 4(c) through an applicable state/territory approval in the place of use.

The instrument contains no litigation history, and its text names no cases or judicial decisions. It is an administrative instrument that approves specified devices; accordingly, it does not record any court challenges, rulings, or interpretive guidance within the instrument itself. The instrument therefore provides no judicially‑certified interpretation of the phrases it uses, such as "exhaled into", "approved for the purpose of indicating whether alcohol is present in the blood of a person", "external territory", or the operation of the state/territory approval recognition mechanism in s 4(c).

Absence of litigation history in the instrument has practical implications. It means there are no authoritative judicial statements recorded here that clarify ambiguous terms or set out how federal courts or tribunals will treat device approvals listed in the instrument. Parties seeking to litigate issues related to device approval, use, admissibility of results, or the interplay between federal and state approval regimes cited in s 4 would need to rely on case law outside the text; none is referenced here.

Because the instrument revokes a prior instrument dated 09/06/2011 (s 3), any litigation that may have arisen under the prior instrument is not addressed or carried forward in this instrument. The text is silent on whether actions taken while the previous instrument was in force retain any presumptive legal validity; resolving continuity questions would require reference to the Act, general principles of administrative law, or any operational policy that accompanied the earlier instrument. In short, the instrument documents no litigation, and offers no judicially‑tested interpretive or evidentiary guidance; readers must look beyond the instrument for any case law addressing the statutory or practical consequences of using an "approved screening device".

The instrument’s brevity produces a number of sharp practical points to watch for,concrete "gotchas" that arise from literal readings of its text.

1. Limited substantive content: the instrument only identifies devices and revokes an earlier instrument. It contains no operational rules (s 4). That means calibration requirements, training standards, maintenance schedules, recordkeeping and evidentiary procedures are absent. Operational staff cannot rely on the instrument itself for procedural guidance.

2. Narrow phrasing "exhaled into": paragraph 4(c) applies only to a "device that is exhaled into". Devices that sample saliva, use passive sensors, or deploy other modalities may not fall within s 4(c) even if they otherwise purport to indicate blood alcohol. If an AFP unit plans to procure a non‑exhalation device, the instrument’s wording suggests it will not be automatically "approved" under s 4(c).

3. Reliance on state/territory approvals creates jurisdictional variance: s 4(c)(i) accepts devices approved "under the law of a state or territory in which the breath screen is conducted." State and territory standards differ; a device approved in one state may be unapproved in another. The instrument imports that potential variation into AFP practice and requires place‑by‑place verification.

4. Foreign and external territory phrasing is circular: s 4(c)(ii) covers devices "in an external territory or a foreign country under the law of a state or territory." This requires close attention: the device must be approved under state/territory law for use in that external territory or foreign country. The text does not say devices approved under foreign law alone qualify; it ties foreign or external use back to state/territory law.

5. Named models confer a concrete procurement consequence: the Lion Alcolmeter SD‑400 and Alcolizer LE are explicitly approved (s 4(a)-(b)). If procurement or logistics plans specify other models, administrators must check whether those models satisfy s 4(c). Continuing to deploy devices that were authorised under the revoked 2011 instrument but are not in the 2021 list risks non‑conformance with the instrument's terms (s 3).

6. No transitional or savings clause: s 3 revokes the 2011 instrument but the text contains no transitional arrangements. Agencies should not assume that devices authorised under the earlier instrument remain authorised after commencement; explicit administrative checking and record amendments are required.

7. No express evidentiary effect: the instrument does not state how results from an "approved screening device" are to be treated in evidence or procedure. Users should not assume that an approved status under this instrument alone guarantees admissibility or decisive probative weight.

8. Administrative verification duty: because s 4(c) conditions approval on state/territory law "in which the breath screen is conducted," operational actors must verify approvals for each place of intended use. Failure to do so could mean a device used is not an "approved screening device" under the instrument.

9. Model naming specificity: the listing is model‑specific. Device model numbers, naming conventions and model variants matter. A small difference in model designation could mean a product is not the exact device listed.

10. Silent on operator requirements: the instrument does not address who may operate an approved device, whether operator certification is required, or any chain‑of‑custody obligations. Those procedural matters are potential sources of dispute given the instrument’s silence.

These are not normative judgments; they are direct, source‑grounded operational consequences and interpretive traps that arise from the instrument’s text and limited scope (ss 2-4).

Compliance with this instrument is narrowly focused: ensure that any breath‑screening device used by the AFP in circumstances where the Act requires an "approved screening device" is either one of the two named models in s 4(a)-(b), or a device that falls within s 4(c). Practical steps to translate the instrument into operational compliance follow from its text.

1. Inventory and gap analysis. Immediately review existing AFP device inventories and cross‑check each model against s 4. Remove or reclassify equipment not matched to s 4 unless a contemporaneous state/territory approval can be shown to bring the device within s 4(c). Given s 3 revokes the 2011 instrument, do not rely on prior approvals without reconciling them to the 2021 list.

2. Procurement specifications. Update procurement documents to list explicitly the Lion Alcolmeter SD‑400 and Alcolizer LE as approved models (s 4(a)-(b)) and include the s 4(c) qualification for other devices. Where procuring alternative devices, require suppliers to provide documentary proof of a state or territory approval that demonstrates the device is "approved for the purpose of indicating whether alcohol is present in the blood of a person" for the relevant location of use.

3. Place‑specific approvals. For devices relied on under s 4(c), verify the state or territory instrument, regulation, or certificate that grants approval, and maintain a register tying each device to the specific approval and the geographical place(s) in which that approval is effective. Pay particular attention to external territories and foreign operations: s 4(c)(ii) conditions those uses on approval "under the law of a state or territory."

4. Operational directives. Draft or revise AFP operational policies to require that users confirm device approval status before conducting a breath screen where the Act requires an "approved screening device." Make verification part of the pre‑deployment checklist and record the approving instrument or certificate in operational logs.

5. Training and operator records. Although the instrument does not prescribe training, ensure that operator training, certification and competence records are maintained and linked to approved devices, because the instrument’s list will be used in any subsequent scrutiny of device use. Explicitly document that the device used was one of those in s 4 or was supported by a s 4(c) state/territory approval.

6. Evidence and records management. Maintain contemporaneous records showing which device was used, its exact model designation, and, where relevant, the state/territory approval documentation. Because the instrument is silent on evidentiary consequences, thorough recordkeeping will be important to demonstrate compliance with the instrument if questions arise.

7. Legal and policy coordination. Advise legal counsel and policy teams to map the interface between the instrument and the AFP Act (s 40R) and to prepare guidance on the treatment of devices approved under state/territory law for use in external territories or foreign countries. Ensure that any divergence between state/territory technical standards and AFP operational needs is surfaced to decision makers.

8. Review schedule. Because the instrument replaces a prior instrument and lists specific device models, institute a review process to monitor whether new devices or model updates should be added by an amended instrument under s 40R. Until the instrument is changed, do not use devices not listed or not covered by s 4(c) without assessing legal risk.

9. Communication with suppliers. Request from manufacturers explicit confirmation of model numbers and any state/territory approvals relied upon. Where a model on the market has variants, obtain written clarification so that procurement and operations can demonstrate they used the exact model listed in s 4(a)-(b) or that the variant is covered by the relevant state/territory approval.

10. Transitional handling. Because s 3 revokes the 2011 instrument and no savings clause appears, adopt a cautious approach to any breath screens scheduled around the date the 2021 instrument commences. Update internal authorisations and ensure device lists are current from the instrument’s commencement date (s 2-3).

All of these steps flow from the instrument’s text and its narrow purpose of declaring which devices are "approved screening devices" for subsection 40R(1) of the Act (s 4). The instrument does not itself require any of the detailed administrative, training or evidentiary practices above, but those measures are practical, source‑grounded compliance actions that respond to the instrument’s limited scope and the operational risks created by the absence of procedural detail.