31Proceedings for disciplinary offences

31 Proceedings for disciplinary offences (1) If the Commissioner believes that an AFP appointee has committed a disciplinary offence, the Commissioner may institute proceedings against the AFP appointee by giving the AFP appointee notice of the proceedings. (1A) The Commissioner shall not institute proceedings against an AFP appointee under subregulation (1) or, if the Commissioner has instituted proceedings under that subregulation, the Commissioner shall not continue those proceedings where criminal proceedings are commenced against the AFP appointee in respect of the matter to which the proceedings under subregulation (1) relate or would have related. (1B) Where an AFP appointee has been convicted of a criminal offence in respect of a matter, the Commissioner shall not institute proceedings under subregulation (1) for a disciplinary offence relating to that matter otherwise than for the disciplinary offence referred to in paragraph 29 (1) (e). (1C) Nothing in subregulation (1A) shall be taken to limit the Commissioner’s power to institute or continue proceedings under subregulation (1) where the criminal proceedings have not resulted in a finding of guilt in relation to the AFP appointee. (1D) The Commissioner shall not institute proceedings against an AFP appointee under subregulation (1) in relation to an alleged disciplinary offence where the AFP appointee has accepted a caution under regulation 32 or 34 in relation to that alleged offence. (2) A notice served on an AFP appointee under subregulation (1): (a) shall be signed by the Commissioner or a person authorized by him or her to sign notices under that subregulation; (b) shall state the nature, and give the particulars, of the alleged disciplinary offence; (c) shall request the AFP appointee to notify the Commissioner within such period, not being less than 7 days after the date of service of the notice, as is specified in the notice, whether the AFP appointee admits or does not admit the truth of the matters alleged to constitute the disciplinary offence; (d) shall state that the AFP appointee may, within the period specified in the notice in accordance with paragraph (c), deliver to the Commissioner: (i) any written statement that the AFP appointee may wish to make in relation to the alleged disciplinary offence; and (ii) any written statement made by another person that the AFP appointee may wish to tender in support of his or her own statement; and (e) shall inform the AFP appointee that he or she is entitled to appear at the hearing of the proceedings and, in the case of proceedings before the Disciplinary Tribunal, that the AFP appointee may appear in person or may be represented by a legal practitioner or by some other person. (2A) If an AFP appointee does not admit the truth of a matter alleged to constitute a disciplinary offence, a notice served on the AFP appointee under subregulation (1) must include a request for the AFP appointee to notify the Commissioner, within a period of not less than 7 days after the date of service of the notice that is specified in the notice, whether the AFP appointee requests that the proceedings be heard and determined by the Disciplinary Tribunal. (3) Where an AFP appointee on whom a notice has been served under subregulation (1) has not, within the period specified in the notice, given notice to the Commissioner for the purpose of subregulation (2A), the AFP appointee shall, for the purposes of this Part and of section 67 of the Complaints Act, be deemed not to have admitted the truth of the matters alleged to constitute the disciplinary offence referred to in the notice. (4) Where: (a) the period specified in a notice served under subregulation (1) has expired; and (b) the AFP appointee on whom the notice has been served has not requested the Commissioner, in writing, that the proceedings be heard and determined by the Disciplinary Tribunal; the Commissioner shall, as soon as practicable after the expiration of the period, determine whether it would be desirable for the proceedings to be heard and determined by the Disciplinary Tribunal. (4A) In relation to a proceeding under subregulation (1) against an AFP appointee, other than a proceeding arising from an investigation under the Complaints Act, the Commissioner must express a view on the facts available to the Commissioner at the time of expressing the view, by notice in writing to the AFP appointee, as to the appropriate penalty or range of penalties. (4B) The Commissioner’s view in a particular case does not affect the function of: (a) the Disciplinary Tribunal; or (b) the Federal Court of Australia; in imposing or reviewing a penalty, as the case may be. (5) Where the Commissioner determines that it is not desirable for the proceedings to be heard and determined by the Disciplinary Tribunal he shall, as soon as practicable after so determining: (a) fix the date on which, and the time and place at which, he will hear and determine the matter; and (b) by notice in writing served on the AFP appointee, inform the AFP appointee of the time, date and place so fixed.