Division 1Provisions relating to the Australian Federal Police Amendment (Workplace Drug Testing and Other Measures) Regulation 2015

## Part 1—Preliminary #### 1 Name of Regulations These Regulations are the Australian Federal Police Regulations 1979. #### 2 Interpretation > In these Regulations: > Act means the Australian Federal Police Act 1979. > AFP means Australian Federal Police. > AFP records means the records of the Australian Federal Police. > approved breath analysis instrument means an instrument that is approved for the purposes of conducting a breath test: (a) under the law of the State or Territory in which the breath test is conducted; or (b) for a breath test conducted in an external Territory or a foreign country—under the law of a State or Territory. > authorised laboratory means: (a) a facility accredited by the National Association of Testing Authorities, Australia; or (b) a facility covered by a determination in force under regulation 13QA. > cost to AFP for use of AFP employee’s time, in relation to making an AFP employee available to render a service, means: (a) if the employee is made available for a minimum of 4 hours and renders the service for 4 hours or less—the amount of remuneration payable to the employee for 4 hours plus 150.2% of his or her base salary for 4 hours; or (b) in any other case—the amount of remuneration payable to the employee for the period when he or she renders the service plus 150.2% of his or her base salary for the period. > government agency means: (a) a Department of the Commonwealth or of a State or Territory; or (b) a body (whether incorporated or not) established for a public purpose by or under a law of the Commonwealth or of a State or Territory. > head of a government agency means: (a) in relation to a Commonwealth government agency that is a Department of the Commonwealth—the Secretary of the Department; or (b) in relation to a Commonwealth government agency that is a body established for a public purpose—the person holding, or performing the duties of, the principal office in respect of the body; or (c) in relation to a State or Territory government agency—the person holding, or performing the duties of, the principal office in respect of the agency. > integrity agency for a State or Territory means any of the following: (a) the New South Wales Crime Commission; (b) the Independent Commission Against Corruption of New South Wales; (c) the Police Integrity Commission of New South Wales; (d) the Independent Broad‑based Anti‑corruption Commission of Victoria; (e) the Crime and Corruption Commission of Queensland; (f) the Corruption and Crime Commission of Western Australia; (g) the Independent Commissioner Against Corruption of South Australia; (h) the Integrity Commission of Tasmania. > liquid property includes money and negotiable instruments, but does not include property that has a collectable value. > Note: Example: Property that has a collectable value could include a rare coin, a proof set of coins, a coin collection, a rare currency note or a collection of currency notes, the face value of which is less than its market value. > medical practitioner has the same meaning as in subsection 3 (1) of the Health Insurance Act 1973. > Merit Protection Commissioner means the Merit Protection Commissioner appointed under the Public Service Act 1999. > registered nurse has the same meaning as in subsection 3 (1) of the Health Insurance Act 1973. > remuneration, for an AFP employee, means the base salary and any overtime, penalties and other allowances payable to the employee. ## Part 2—Employment ### Division 2.1—Employment decisions #### 3 AFP values Employment decisions in the AFP must be based on the following values: (a) impartiality and professionalism; (b) merit; (c) freedom from discrimination; (d) openness and accountability; (e) fairness; (f) equity in employment; (g) effectiveness. #### 4 Competence and qualifications of commissioned police officers (1) A member of the Australian Federal Police is competent and qualified to be a commissioned police officer if the member: (a) is an Australian citizen; and (b) has reached the age of 18 years; and (c) has been certified by a medical practitioner, approved by the Commissioner, to be in good health; and (d) has the experience, qualifications and training required for the effective performance of the duties of a commissioned police officer, as specified by the Commissioner; and (e) having regard to any other factors that are relevant to the performance of the duties of a commissioned police officer, is suitable to be a commissioned police officer. (2) However, if the Commissioner considers it appropriate to do so, the Commissioner may recommend that paragraph (1) (a) not apply to a member who is otherwise competent and qualified to be a commissioned police officer. #### 5 Suspension from duties (1) The Commissioner may suspend an AFP employee from duties: (a) if the Commissioner believes on reasonable grounds that the employee: (i) has, or may have, engaged in conduct that contravenes the AFP professional standards; or (ii) has, or may have, engaged in corrupt conduct; or (b) to allow the employee to contest an election to a non‑parliamentary body. (2) The Commissioner may also suspend an AFP employee from duties if: (a) the employee is charged with having committed a summary or indictable offence against a law of the Commonwealth, a State, a Territory or another country; and (b) the Commissioner believes that, because of the nature of the offence, the employee should not continue to perform his or her duties until the charge has been determined. (3) An AFP employee who is suspended under this regulation is entitled to be paid remuneration in accordance with the Act but is not entitled to penalties, composites, overtime or other allowances while suspended. (4) However, the Commissioner may direct that suspension is without remuneration. (5) The Commissioner must end the suspension if: (a) the Commissioner no longer believes on reasonable grounds that the employee: (i) has, or may have, engaged in conduct that contravenes the AFP professional standards; or (ii) has, or may have, engaged in corrupt conduct; or (b) the employee fails to be elected to the non‑parliamentary body; or (c) if subregulation (2) applies, the employee is found not guilty of the offence with which he or she has been charged. (6) The Commissioner must end the suspension if: (a) the AFP conduct issue in relation to conduct mentioned in paragraph (1) (a) has been dealt with under Part V of the Act; and (b) either: (i) action, other than termination action, is to be taken in relation to the issue; or (ii) the Commissioner has determined that no further action is to be taken in relation to the issue. #### 5A Prescribed persons may require AFP employees to undergo alcohol screening tests, alcohol breath tests or prohibited drug tests etc. (1) For the purposes of paragraph 40J(1)(aa) of the Act, an authorised person (within the meaning of regulation 13E) may give an AFP employee who is suspended from duty a written direction requiring him or her to do one or more of the following: (a) undergo an alcohol screening test; (b) undergo a breath test; (c) provide a body sample of a kind specified in the direction for a prohibited drug test. (2) An AFP employee must comply with a direction given to him or her under subregulation (1). (3) If: (a) in accordance with a direction under subregulation (1), an AFP employee undergoes a breath test; and (b) the breath test indicates the presence of alcohol; the employee may provide a sample of his or her blood for the purpose of a blood test, in accordance with these Regulations. > Note: Subdivision 2.4B.3 sets out rules about conducting blood tests and prohibited drug tests. #### 6 Suspension of declarations under section 40B The Commissioner may, for a specified period of time, suspend a declaration made under section 40B of the Act. ### Division 2.2—Conditions of employment #### 8 Undertaking For paragraphs 36 (2) (a), (3) (a), (4) (a), (4A) (a) and (4B) (a) of the Act, the undertaking in Form 1 of Schedule 1 is prescribed. #### 9 Oaths and affirmations (1) For subsection 36 (1) and paragraphs 36 (2) (b), (3) (b) and (4) (b) of the Act, the oath in Form 2 of Schedule 1 and the affirmation in Form 3 of Schedule 1 are prescribed. (2) For paragraphs 36 (4A) (b) and (4B) (b) of the Act, the oath in Form 3A of Schedule 1 and the affirmation in Form 3B of Schedule 1 are prescribed. (3) It is not necessary that a religious text be used in making and subscribing an oath mentioned in subregulation (1) or (2). ### Division 2.3—Election candidates #### 10 Resignation to contest election (1) An AFP employee may resign from the AFP to become a candidate at an election of a member or members of: (a) the Parliament of the Commonwealth or a State; or (b) the Legislative Assembly for the Australian Capital Territory or of the Northern Territory. (2) However, the employee may not resign for that purpose earlier than the date of issue of the writ for the election or later than the date on which the nominations for the election close. (3) The employee must give the Commissioner, no later than 2 weeks before he or she proposes to resign, notice in writing specifying the day on which he or she proposes to resign. #### 11 Re‑engagement of person who resigns to contest election (1) This regulation applies to a person who: (a) resigns from the AFP under regulation 10; and (b) fails to be nominated at the election or, if nominated, fails to be elected at the election; and (c) applies to be re‑engaged as an AFP employee within 2 months after the declaration of the result of the election (or, if the result is disputed, within 2 months after a court of disputed returns decides the petition disputing the result, or the petition is withdrawn or lapses). (2) The person must be again engaged as an AFP employee on the same terms and conditions as would apply to the person if the person had not resigned. (3) If a declaration under subsection 9 (2A) or (2B), or section 40B or 40D of the Act was in force in relation to the person immediately before the person resigned, then, unless it would have ceased to be in force sooner, the declaration is taken to continue to be in force from the day when the person is again engaged until it would otherwise cease to be in force. (4) The period between the person’s resignation and the day when the person is again engaged as an AFP employee is to be recognised as service for all purposes. ### Division 2.4—Financial matters #### Subdivision 2.4.1—Submission of financial statements #### 12 Financial statements (1) A statement given to the Commissioner under subsection 40L (1) of the Act is confidential and the information contained in it must not be disclosed except for the purpose for which it was collected. (2) The statement must be stored in a way that ensures confidentiality is maintained. (3) The statement must only be handled: (a) by the Commissioner or a person authorised by the Commissioner; and (b) for the purpose for which it was collected. #### Subdivision 2.4.2—Deductions from salaries to satisfy judgment debts #### 12A Definitions (1) In this Subdivision: > debtor means any of the following persons who owe a judgment debt: (a) the Commissioner; (b) a Deputy Commissioner; (c) an AFP employee; (d) a special member; (e) a special protective service officer. > judgment creditor means a person in whose favour a judgment for a sum of money has been given. > judgment debt includes interest on a judgment debt. > net salary has the meaning given by subregulation (2). > paying officer, for a debtor, means a person appointed under regulation 12D who is responsible for dealing with the debtor. > total gross salary has the meaning given by subregulation (3). (2) The net salary of a debtor is the debtor’s total gross salary, less any amount to be deducted: (a) to pay income tax; and (b) if applicable, to pay child support in accordance with the Child Support (Assessment) Act 1989; and (c) as a contribution that: (i) the debtor is required to make to a superannuation fund relating to the debtor’s engagement in the AFP; and (ii) is the minimum amount required by law or by the rules of the fund. (3) The total gross salary of a debtor is the amount of: (a) the debtor’s gross salary as the Commissioner, a Deputy Commissioner, an AFP employee, a special member or a special protective service officer (not including any payment of compensation under the Safety, Rehabilitation and Compensation Act 1988); and (b) the allowances, in the nature of salary, that are paid to the debtor; without any reduction for salary sacrifice arrangements, or other arrangements for a similar purpose. #### 12B Application of Subdivision 2.4.2 This Subdivision does not apply to a debtor: (a) whose estate has been sequestrated, either voluntarily or compulsorily, for the benefit of creditors; and (b) who has not yet obtained a certificate of discharge. #### 12C Application of State or Territory law A law of a State or a Territory that deals with satisfying a judgment debt: (a) applies to a debtor’s judgment debt only to the extent that the law deals with the calculation of interest on the debt; and (b) does not apply to the judgment debt for any other purpose. #### 12D Paying officer (1) If the Commissioner is satisfied, on reasonable grounds, that the making of deductions from a debtor’s salary is required to satisfy a judgment debt, the Commissioner must appoint, in writing, one or more persons as paying officers for the purpose of making those deductions. (2) However, if the Commissioner is the debtor: (a) the Commissioner must not appoint a paying officer under subregulation (1); and (b) the Commissioner must act under this subregulation without considering whether the making of deductions from the Commissioner’s salary is required; and (c) the Commissioner must, in writing, delegate his or her power under subregulation (1) to appoint a paying officer to a senior executive AFP employee; and (d) the senior executive AFP employee must: (i) decide whether the making of deductions from the Commissioner’s salary is required; and (ii) if the senior executive AFP employee decides that the making of deductions is required to satisfy a judgment debt—appoint, in writing, a person as a paying officer for the purpose of making those deductions; and (e) the Commissioner must not take any action, or make any arrangement, in relation to the administration under this Subdivision of the Commissioner’s debt, other than: (i) making the delegation mentioned in paragraph (c); and (ii) if a paying officer is appointed—assisting the paying officer in satisfying the debt. (3) If a person is appointed as a paying officer: (a) the appointment authorises the person to act as a paying officer only in relation to the debtor to whom the appointment relates; and (b) the person is responsible for making deductions from the debtor’s salary to satisfy the judgment debt against the debtor. (4) A debtor must not be a paying officer for himself or herself. #### 12E Authority to make deductions (1) Deductions from a debtor’s salary to satisfy a judgment debt may be started only if: (a) the paying officer has received a statutory declaration, made by the judgment creditor, that the judgment debt exists and has not been discharged; and (b) the paying officer has received a copy of the judgment to which the judgment debt relates, certified by the Registrar or other appropriate officer of the relevant court; and (c) the paying officer has received the fee (if any) required under regulation 12F; and (d) the paying officer has given the debtor a notice in accordance with subregulation (2); and (e) the debtor does not, within the time specified in the notice given under subregulation (2), satisfy the paying officer that the judgment debt has been satisfied. > Note: For cases where there is more than one judgment debt against a debtor, see regulation 12G. (2) The paying officer must: (a) notify the debtor, in writing, as soon as practicable after being satisfied that the requirements mentioned in paragraphs (1) (a), (b) and (c) are met, that it is proposed to make the deductions; and (b) require the debtor to state, in writing, by a time specified in the notice, whether the judgment debt has been satisfied; and (i) if the judgment debt has been satisfied—to give the paying officer evidence in support of that fact; and (ii) if the judgment debt has not been satisfied—to state, in writing, the amount due under the judgment at the time the statement is made. (3) If the debtor does not give the paying officer evidence that the judgment debt has been satisfied by the time specified in the notice under subregulation (2), the paying officer must deduct from the debtor’s salary on each pay day for the debtor an amount equal to: (a) the deduction required under regulation 12I; or (b) a lesser amount that, in the paying officer’s opinion, is needed to satisfy the balance of the judgment debt. (4) After making the first deduction, the paying officer may only continue to make deductions if the paying officer has no reason to believe that the judgment debt has been discharged. (5) The paying officer must ensure that the amount of each deduction is paid to the judgment creditor. #### 12F Administration fee (1) A judgment creditor (other than the Commonwealth) who requests the payment of a judgment debt must pay a fee of $38 for the making of the deductions. (2) The fee is the price of the supply of a service for the purposes of the A New Tax System (Goods and Services Tax) Act 1999. (3) If a judgment creditor (other than the Commonwealth) requests the payment of a judgment debt, but does not pay the fee when making the request, the paying officer must notify the judgment creditor that: (a) the fee is payable for making the deductions; and (b) no deductions will be made unless the fee is paid. #### 12G More than one judgment debt (1) If more than one judgment debt exists against a debtor, the paying officer: (a) must deal with the judgment debts in the order in which the requests for deductions were received; and (b) must not make a deduction for the purpose of a particular judgment debt until all judgment debts for which earlier requests were made have been satisfied. (2) If the paying officer receives 2 or more requests at the same time for the payment of judgment debts against a debtor, the paying officer must deal with the judgment debts in the order of the dates and times at which judgment was given for each debt, starting with the earliest judgment. #### 12H Effect of deductions If an amount is paid to a judgment creditor after a deduction is made from the debtor’s salary on a pay day for the debtor: (a) an amount equal to that amount is taken to have been paid by the Commonwealth to the debtor on account of salary payable to the debtor on that pay day; and (b) an amount equal to that amount is taken to have been paid by the debtor to the judgment creditor for the purposes of the judgment debt. #### 12I Rate of deductions (1) For paragraph 12E (3) (a), the rate at which a deduction is to be made from the debtor’s net salary on a pay day for the debtor is 20%, unless subregulation (2), (3) or (4) applies. (2) The paying officer may reduce the rate at which deductions are to be made if the paying officer is satisfied, on reasonable grounds, that the debtor: (a) is suffering serious financial hardship; or (b) would suffer serious financial hardship if the rate of deduction were not reduced. (3) If the debtor asks the paying officer, in writing, to make deductions at a rate greater than 20% of the debtor’s net salary, the paying officer must comply with the request as soon as practicable. (4) The paying officer must reduce the rate as soon as practicable, but is not required to reduce the rate to less than 20%, if: (a) deductions are being made at a rate greater than 20% of the debtor’s net salary; and (b) the debtor asks a paying officer, in writing, to reduce the rate of the deductions. #### 12J Administration of deductions (1) A paying officer, in relation to a debtor, may: (a) require the judgment creditor to confirm that the judgment debt has not been discharged; and (b) suspend the making of deductions until the paying officer receives the confirmation. (2) If a debtor’s employment with the AFP ceases, or is terminated, for any reason (including the debtor’s death) the paying officer must, as soon as practicable, notify the judgment creditor of the cessation or termination. #### 12K Recovery of overpayment If a payment made to a judgment creditor for a judgment debt exceeds the amount due under the judgment, the judgment creditor must repay the excess to the debtor. ### Division 2.4A—Conduct of AFP appointees #### 13A Intentionally prejudicing police services or protective service functions An AFP appointee must not, with the intention of prejudicing police services or protective service functions: (a) fail to give prompt attention to his or her duties; or (b) be absent from duty without authority. #### 13B Information—unauthorised disclosure An AFP appointee must not, without lawful authority or excuse, disclose or take any action that brings, or is intended to bring, information relating to any of the following matters to the notice of the AFP appointee to whom the matter relates or any other person: (a) a matter in relation to information given by a person under Part V of the Act that raises an AFP conduct issue; (b) a matter in relation to a decision made by the Commissioner under section 40SD of the Act that an AFP conduct issue in relation to an AFP appointee is to be dealt with under Part V of the Act; (c) a matter in relation to an investigation of an AFP conduct issue in relation to an AFP appointee under Subdivision D of Division 3 of Part V of the Act; (d) a matter in relation to an inquiry under Division 4 of Part V of the Act. #### 13C Information—unauthorised use or access (1) An AFP appointee must not, except in the performance of his or her duties: (a) use or communicate to another person any information that comes to the AFP appointee’s knowledge, or into his or her possession, by reason of being an AFP appointee; or (b) obtain access to information by reason of being an AFP appointee. (2) For the purposes of paragraph (1) (b), an AFP appointee is taken to have obtained access to information even if: (a) the information is not in the possession, or under the control, of the Australian Federal Police; or (b) whether or not paragraph (a) applies—the information consists of a computer program or part of a computer program, or is otherwise stored in, or entered or copied into, a computer. #### 13D Bankrupt AFP appointee An AFP appointee who becomes a bankrupt must: (a) as soon as practicable, advise the Commissioner in writing that he or she is a bankrupt; and (b) give the Commissioner information about his or her bankruptcy, as required by the Commissioner. ### Division 2.4B—Drug testing #### Subdivision 2.4B.1—General provisions #### 13E Meaning of authorised person In this Division: > authorised person means: (a) in relation to a direction to undergo a breath test, blood test or prohibited drug test—a person authorised under regulation 13F; and (b) in relation to the conduct of a breath test, blood test or prohibited drug test, or the operation of equipment for purposes of that test—a person authorised under regulation 13G. #### 13F Persons authorised to give directions (1) The Commissioner may, by instrument in writing, authorise a person for the purposes of subregulation 5A(1) or subsection 40M(1) or 40N(1), (2) or (4) of the Act. (2) The Commissioner may authorise: (a) a person by name; or (b) the holder, from time to time, of a particular position by reference to the title of that position. (3) The Commissioner must give to a person authorised under this regulation a certificate stating that he or she is an authorised person. (4) An authorised person must, if requested to do so, show his or her certificate to an AFP employee or special member who is directed by that person to undergo a test for the purposes of subregulation 5A(1) or subsection 40M(1) or 40N(1), (2) or (4) of the Act. #### 13G Persons authorised to conduct tests and to operate equipment for that purpose A person specified in column 3 of an item in Schedule 1A is authorised: (a) to conduct the test specified in column 2 of the item; and (b) to operate equipment for purposes of that test. #### 13H Conduct of tests—general (1) A breath test, blood test or prohibited drug test conducted for the purposes of subregulation 5A(1) or subsection 40M(1) or 40N(1), (2) or (4) of the Act must be conducted: (a) in a respectful manner; and (b) in circumstances affording reasonable privacy to the AFP employee or special member directed to undergo the test. (2) The test must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the test and must not involve: (a) removal of more clothing than is necessary for the conduct of the test; and (b) more visual inspection than is necessary for the conduct of the test. (3) If practicable, the test must be conducted by a person of the same sex as the AFP employee or special member directed to undergo the test. (4) If the AFP employee or special member is required to provide a sample of hair for the purpose of a prohibited drug test, the person collecting the sample: (a) must use the least painful technique known and available to the person to collect the sample; and (b) must collect only the amount of hair necessary for the conduct of the test; and (c) may collect the sample from any part of the body of the AFP employee or special member, other than: (i) the genital or anal area; or (ii) the buttocks. #### 13J Certificates A certificate issued under subregulation 13F (3) or regulation 13M or 13T is evidence of the matters stated in the certificate. #### 13K Security and destruction of body samples (1) This regulation applies in relation to a body sample that was provided by an AFP employee or a special member for the purpose of a blood test or a prohibited drug test conducted for the purposes of subregulation 5A(1) or subsection 40M(1) or 40N(1), (2) or (4) of the Act. (2) The body sample must be kept in a secure location until such time as it is destroyed in accordance with this regulation. (3) The body sample must be destroyed: (a) if the body sample indicates the presence of alcohol or prohibited drugs—no later than 3 years after the day the test was conducted; or (b) in any other case—no later than 28 days after the day the test was conducted. (4) However, if the body sample is of a kind mentioned in paragraph (3)(a), it need not be destroyed if the Commissioner determines, in writing, that it should be retained, for such longer period as specified in the determination, for the purpose of: (a) determining whether the AFP employee or special member who provided the body sample (or any other AFP employee or special member) has committed an offence or failed to comply with AFP professional standards; or (b) assessing the continuing suitability of, as the case requires: (i) the AFP employee for employment as an AFP employee; or (ii) the special member for appointment as a special member; or (c) use in any of the following: (i) proceedings in relation to a decision of the Commissioner to terminate the employment of the AFP employee or the appointment of the special member; (ii) proceedings under the Safety, Rehabilitation and Compensation Act 1988; (iii) proceedings in tort against the Commonwealth that are instituted by the AFP employee or special member. > Note: Information about a body sample of an AFP employee or a special member that indicates the presence of alcohol or prohibited drugs may be provided to certain Commonwealth, State and Territory law enforcement, national security and anti‑corruption bodies for the purposes of security and character clearances and for intelligence gathering in relation to criminal activities (see subregulation 13L(2)). (5) A body sample that is retained for a longer period in accordance with subregulation (4) must be destroyed no later than the last day of the longer period. (6) This regulation does not apply to an unanalysed body sample. > Note: An unanalysed body sample may be destroyed if it is not collected by the AFP employee or special member within 6 months of being informed of the result of the blood test or prohibited drug test (see subregulation 13T(3)). #### 13KA Security and destruction of records relating to body samples from alcohol screening tests, breath tests, blood tests and drug tests (1) This regulation applies in relation to a record of a body sample that is relevant to an alcohol screening test, a breath test, a blood test or a prohibited drug test conducted for the purposes of subregulation 5A(1) or subsection 40LA(1), 40M(1) or 40N(1), (2) or (4) of the Act in relation to an AFP appointee. (2) The record must be kept in a secure location until such time as it is destroyed in accordance with this regulation. (3) The record must be destroyed if: (a) the body sample did not indicate the presence of alcohol or prohibited drugs; and (b) the AFP appointee who provided the body sample ceases, for any reason, to be an AFP appointee. (4) A record of a body sample that must be destroyed under subregulation (3) must be destroyed as soon as practicable after the AFP appointee who provided the body sample ceases to be an AFP appointee. (5) Despite subregulations (3) and (4), the record need not be destroyed if: (a) it relates to any of the following: (i) the detection of alcohol or prohibited drugs; (ii) the name of any prohibited drugs detected; (iii) the quantity of any alcohol or prohibited drugs detected; (iv) how a body sample was provided or analysed; (v) whether a urine sample was provided, or analysed, in accordance with the standard mentioned in regulation 13V; and (b) it is used for compiling a statistical database; and (c) it does not include information that may be used to identify the AFP appointee who provided the body sample to which the record relates. (6) A record that is retained in accordance with subregulation (5) must be destroyed no later than the day determined, in writing, by the Commissioner. #### 13L Disclosure of information (1) A person to whom section 60A of the Act applies may disclose information revealed by an alcohol screening test, a blood test or a prohibited drug test conducted for the purposes of subsection 40LA(1), 40M(1) or 40N(1), (2) or (4) of the Act in relation to an AFP appointee only: (a) if the information is already publicly known; or (b) in accordance with this Division; or (c) for the investigation of any offence or offences generally; or (d) to enable an AFP conduct issue to be dealt with under Part V of the Act and to enable any action to be taken under that Part in relation to the issue; or (e) for a decision whether to institute proceedings for an offence; or (f) for proceedings for an offence; or (g) for the AFP appointee’s medical treatment; or (h) if the AFP appointee consents in writing to the disclosure. (2) The Commissioner may disclose information revealed by an alcohol screening test, a blood test or a prohibited drug test conducted for the purposes of subsection 40LA(1), 40M(1) or 40N(1), (2) or (4) of the Act in relation to an AFP appointee to any of the following: (a) the head of a Commonwealth government agency; (b) the head of a police force of a State or Territory; (c) the head of an integrity agency for a State or Territory; (d) the head of another State or Territory government agency; if the Commissioner is satisfied, having regard to the functions of the agency concerned, that it is appropriate to do so for the purposes of: (e) conducting a security or character clearance of a person who is, or was, an AFP employee or a special member; or (f) determining whether a person who is, or was, an AFP employee has committed an offence or failed to comply with AFP professional standards; or (g) assessing: (i) the suitability for employment of a person who is, or was, an AFP employee; or (ii) the suitability for appointment of a person who is, or was a special member; or (h) intelligence gathering in relation to criminal activity. > Note: It is an offence to make a record of any prescribed information or to divulge or communicate any prescribed information to another person, other than for the purposes of the Act or the regulations (see section 60A of the Act). #### Subdivision 2.4B.2—Breath tests #### 13M Procedures to be followed (1) A breath test for section 40M or 40N of the Act must be conducted using an approved breath analysis instrument. (2) An AFP employee or special member who is directed to undergo a breath test may ask the authorised person conducting the test to arrange for the AFP employee or special member to also undergo a blood test. (3) However, neither a request for a blood test to be conducted nor the conduct of a blood test absolves the AFP employee or special member from the obligation to undergo a breath test. (4) If the AFP employee or special member asks that a blood test be conducted, the authorised person conducting the breath test must take all reasonable steps to contact a person authorised to conduct a blood test. (5) A certificate that makes statements about a matter specified in subregulation (6) and that is expressed to be given for this regulation must be signed by the authorised person who conducted the test. (6) The following matters are specified: (a) the type and serial number of the approved breath analysis instrument used to conduct the breath test; (b) the sample number of the test; (c) the full name and date of birth of the person tested; (d) the full name of the authorised person who conducted the test; (e) whether the authorised person conducted a self‑test on the instrument before and after the analysis; (f) if the authorised person conducted a self‑test: (i) the time and result of the self‑test; and (ii) whether the self‑test was conducted on ‘override mode’; (g) the date on which, and the time at which, the breath test was conducted; (h) the result of the breath test as shown by the instrument. #### 13N Approval of courses The Commissioner may, in writing, approve a training course in conducting breath tests. #### Subdivision 2.4B.3—Blood tests and prohibited drug tests of body samples other than urine #### 13P Application This subdivision applies to: (a) blood tests; and (b) prohibited drug tests of body samples other than urine. #### 13Q Definitions In this subdivision: > analyst means a person at an authorised laboratory who performs the quantification of a body sample taken by an authorised person. #### 13QA Commissioner may determine that a facility is an authorised laboratory (1) The Commissioner may, in writing, determine that a facility (other than a facility accredited by the National Association of Testing Authorities, Australia) is an authorised laboratory for the purpose of these Regulations. (2) If the Commissioner authorises a facility under subregulation (1): (a) the Commissioner must give the facility a certificate stating that it is an authorised laboratory; and (b) an employee of the facility must, if requested to do so, show the certificate to an AFP employee or special member who is directed to undergo a test to collect body samples other than blood. #### 13QB Approval of facility to collect body samples (1) The Commissioner may, in writing, approve a facility (other than a facility accredited by the National Association of Testing Authorities, Australia) to collect body samples other than blood. (2) If the Commissioner authorises a facility under subregulation (1): (a) the Commissioner must give the facility a certificate stating that it is approved to collect body samples other than blood; and (b) an employee of the facility must, if requested to do so, show the certificate to an AFP employee or special member who is directed to undergo a test to collect body samples other than blood. #### 13QC Approval of courses—collecting body samples The Commissioner may, in writing, approve a training course in collecting body samples other than blood. #### 13R Taking of body samples An authorised person taking a body sample for the purposes of a blood test or prohibited drug test must: (a) place approximately equal quantities of the sample into 2 containers; and (b) label each container for future identification; and (c) ensure that each container is sealed; and (d) arrange for both sealed containers to be sent to an authorised laboratory. #### 13S Analysis of body samples (1) An analyst at an authorised laboratory must conduct an analysis of a portion of the body sample to determine: (a) the concentration of alcohol in the blood; or (b) whether the body sample contains a prohibited drug. (2) If the first analysis of a portion of the sample indicates the presence of alcohol or a prohibited drug in the sample, an analysis of another portion of the sample must be conducted. (3) The sample for the second analysis must be taken from the same container from which the earlier sample was taken. #### 13T Certificates (1) As soon as practicable after conducting an analysis of a body sample provided by an AFP employee or a special member for a blood test or prohibited drug test, the analyst must give a certificate to an authorised person. (2) The certificate must state the following information: (a) the unique identification number for the sample; (b) the date when the sample was taken; (c) the date when the sample was received in the authorised laboratory for analysis; (d) the authorised laboratory identification number of the sample; (e) the date when the analysis was conducted; (f) the results of the analysis; (g) the signature and name of the analyst who conducted the analysis; (h) any observations made during the course of the analysis which may have affected test results. (3) As soon as practicable after receiving the certificate under subregulation (1), an authorised person must give the AFP employee or special member: (a) a copy of the certificate; and (b) a written notice informing the AFP employee or special member that: (i) he or she may collect the unanalysed sample, and the result of the analysis from the analysed sample, from the authorised laboratory within 6 months of being informed of the result of the blood test or prohibited drug test; and (ii) he or she may have the unanalysed sample independently tested by another authorised laboratory; and (iii) the unanalysed sample may be destroyed if it is not collected within 6 months of the AFP employee or special member being informed of the result of the blood test or prohibited drug test. #### 13U Disputed results (1) If the results of an analysis are disputed by the AFP employee or special member who provided the sample: (a) the unanalysed sample must be made available for independent testing; and (b) all records of the original test must be made available for re‑examination. (2) Because of possible degradation of the body sample over time, re‑testing need only detect the presence of alcohol or a prohibited drug. #### Subdivision 2.4B.4—Prohibited drug tests using urine samples #### 13V Procedures to be followed The provision, and the analysis, of a urine sample for the purposes of a prohibited drug test must be in accordance with the Australian/New Zealand Standard AS/NZS 4308—2008 “Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine” as those procedures exist at the commencement of the Australian Federal Police Amendment (Workplace Drug Testing and Other Measures) Regulation 2015. #### 13W Approval by Commissioner The Commissioner may, in writing, approve a training course in supervising the provision of urine samples. ### Division 2.5—Miscellaneous #### 14 Awards for bravery, other conspicuous conduct or diligent service (1) For subsections 61 (1) and 61 (1A) of the Act, an award mentioned in column 2 of Schedule 1B is prescribed. (2) For subsection 61 (2) of the Act, a criterion mentioned in column 3 of an item in Schedule 1B is prescribed for the award mentioned in column 2 of the item. #### 15 Voluntary retirement (1) Notice under subsection 31 (1) of the Act must specify a day on which the retirement of the AFP employee is to take effect. (2) The day specified in a notice under subsection 31 (1) of the Act must not: (a) be earlier than 14 days after the day on which the notice is given (unless the Commissioner approves a shorter period); or (b) be later than 4 months after the day on which the notice is given. ## Part 3—Review of employment decisions ### Division 3.1—Retirement due to physical or mental incapacity #### 16 Application for review (1) An AFP employee who has been retired by the Commissioner under subsection 32 (1) of the Act may apply in writing to the Merit Protection Commissioner for review of the decision. (2) The application must be made through the Commissioner. (3) The application must be received by the Commissioner within 28 days after the employee is notified of the decision. (4) The application must state briefly why the review is sought. (5) The application does not operate to stay the decision. #### 17 Notification of review Within 14 days after receiving an application, the Commissioner must give to the Merit Protection Commissioner: (a) the application; and (b) any documents relating to the making of the decision. #### 18 Minimum requirements for conducting review (1) The conduct of a review must meet the following minimum requirements: (a) the review must be conducted with due regard to procedural fairness; (b) the review must be conducted in private; (c) the review must be finished as quickly, and with as little formality, as the proper consideration of the matter allows. (2) A person appearing before the Merit Protection Commissioner must do so without representation unless the Merit Protection Commissioner decides that, in all the circumstances, it would be reasonable to allow the person to be represented. #### 19 Requirement to provide information or documents (1) The Merit Protection Commissioner may by written notice require the Commissioner or applicant to give to the Merit Protection Commissioner specified information or documents relevant to the review. (2) The Commissioner or applicant must give the information or documents in the way, and at or within the time, stated in the notice. #### 20 Conduct of review The Merit Protection Commissioner may: (a) review the decision; and (b) make a recommendation to the Commissioner in writing about the review; and (c) tell the Commissioner in writing of the reasons for the recommendation; and (d) give a copy of the recommendation and reasons to the applicant. #### 21 Exclusion of information (1) The Merit Protection Commissioner may exclude information from a copy of recommendation and reasons that is to be given to an applicant, in response to an application for review, if: (a) the recommendation and reasons refer to information of a medical or psychiatric nature; and (b) the Merit Protection Commissioner thinks that the information may be prejudicial to the physical or mental health or well‑being of the applicant. (2) However, if information is excluded, the Merit Protection Commissioner must tell the applicant in writing: (a) that information has been excluded from the copy of the recommendation and reasons; and (b) if the applicant nominates a medical practitioner for this regulation, the information will be given to the medical practitioner. (3) The Merit Protection Commissioner must give the information to the nominated medical practitioner as soon as possible. #### 22 Action by Commissioner (1) If the Commissioner receives a recommendation under regulation 20, the Commissioner must as soon as possible: (a) consider the recommendation; and (b) confirm or revoke the decision. (2) The Commissioner must notify the applicant and the Merit Protection Commissioner, in writing, of the decision made under paragraph (1) (b), and the reasons for it. #### 23 Exclusion of information (1) The Commissioner may exclude information from a copy of decision and reasons that is to be given to an applicant under subregulation 22 (2) if: (a) the decision and reasons refer to information of a medical or psychiatric nature; and (b) the Commissioner thinks that the information may be prejudicial to the physical or mental health or well‑being of the applicant. (2) However, if information is excluded, the Commissioner must tell the applicant in writing: (a) that information has been excluded from the copy of the decision and reasons; and (b) if the applicant nominates a medical practitioner for this regulation, the information will be given to the medical practitioner. (3) The Commissioner must give the information to the nominated medical practitioner as soon as possible. ### Division 3.2—Miscellaneous #### 24 Process for review must exist (1) The Commissioner must ensure that a process for reviewing AFP employment decisions exists at all times. (2) The process must be at least as favourable to AFP employees and special members as the process set out in the Australian Federal Police Certified Agreement 1999–2000, as at 1 July 2000. ## Part 5—AFP property matters #### 28 Return of property etc (1) A person who ceases to be a Deputy Commissioner, an AFP employee, a special member or a special protective service officer must, as soon as it is reasonably practicable to do so, return to the Commissioner all property (including accoutrements and clothing), other than prescribed property, that has been supplied to the person for the purposes of his or her service in the AFP or that is in his or her custody because of that service. Penalty: 5 penalty units. (2) The Commissioner may make application to a Magistrate for a warrant authorizing the Commissioner to enter and search premises or a place for the purpose of ascertaining whether property referred to in subregulation (1) in relation to a person, being property that the person has failed to return to the Commissioner in accordance with that subregulation, is to be found on those premises or that place. (3) If, on an application under subregulation (2), a Magistrate is satisfied by information on oath or affirmation that there are reasonable grounds for believing that: (a) such property as is referred to in the information is to be found in the premises or place; and (b) the issue of a warrant is reasonably required for the recovery of that property; the Magistrate may grant a warrant authorizing the Commissioner, with such assistance as he or she thinks appropriate and if necessary by force, to enter and search the premises or place during such hours of the day or night as the warrant specifies or, if the warrant so specifies, at any time, for the purpose referred to in subregulation (2) and to seize any such property that he or she may find in the premises or place. (4) In this regulation: > prescribed property, in relation to a person to whom subregulation (1) applies, means property that the Commissioner has, by a determination in writing in force at the time the subregulation applies to the person, determined is not required to be returned to the Commissioner by: (a) the person; or (b) a class of persons that includes the person; or (c) all persons to whom subregulation (1) applies. #### 29 Return of claimable property (1) This regulation applies to property, including liquid property, lawfully held by the AFP, except property that: (a) is owned or is held, under any other rights to possession, by the AFP; or (b) has been seized by the AFP; or (c) is held for evidentiary use in legal proceedings. (2) Property may be claimed: (a) before it is presented for auction or is otherwise disposed of—by the person entitled to possession of the property; or (b) if there is a finder of the property—by the finder, only if: (i) the person entitled to possession has not claimed it within 3 months after the date it came into the custody of the AFP; and (ii) the claim is made within 1 month of the end of the period mentioned in subparagraph (i). (3) Before releasing the property to a person claiming entitlement (or to the person’s authorised agent), the Commissioner must be satisfied that the person has a valid entitlement. (4) If there are competing claims under subregulation (2), the AFP will respond to a claim that is supported by a court order identifying the claimant as the person entitled to the property. (5) On the application of any person (including the AFP), a court may make an order that any property to which subregulation (4) applies be returned to the person entitled to possession. (6) If property is released to a person in accordance with this regulation, any other person who has an interest in the property has no right of action against the AFP in relation to that interest. (7) Liquid property that is unclaimed becomes public money within the meaning of the Financial Management and Accountability Act 1997. > Note: See the Financial Management and Accountability Act 1997 for how public money is dealt with. #### 30 Disposal of unclaimed property (1) This regulation applies to property to which regulation 29 applies, if: (a) the Commissioner is satisfied that reasonable action has been taken to tell the person entitled to possession of the property that the AFP has custody of the property and intends to dispose of it if it is not claimed under regulation 29; and (b) it has not been claimed under regulation 29 by the person entitled to possession or by the finder. (2) The Commissioner, if satisfied that the property is suitable for disposal by public auction, may so dispose of it. (3) The Commissioner may direct that the property be disposed of by appropriate means (otherwise than by public auction) if it is property of any of the following kinds: (a) keys; (b) goods the sale price of which at auction is not likely to cover the cost of disposal; (c) films, books, pictures or other material depicting violence or sexual activity. (4) The Commissioner may, if satisfied that it is in the interest of public health and safety to do so, direct that the property be disposed of by appropriate means (otherwise than by public auction) if it is property of any of the following kinds: (a) animals; (b) perishable goods; (c) goods that are, or could be, dangerous or noxious. #### 31 Return or disposal of exhibits (1) This regulation applies to property lawfully held by the AFP, being property: (a) seized by the AFP; or (b) held for evidentiary use in legal proceedings. (2) Subject to any other law of the Commonwealth, or an order of a court, the Commissioner must ensure that the property is returned to the person entitled to possession when the reason for its detention has no further effect. > Note: See, for example, the Proceeds of Crime Act 1987. (3) However, if the Commissioner is reasonably satisfied that the person entitled to possession of the property cannot be located or does not want the property: (a) for liquid property—the property becomes public money within the meaning of the Financial Management and Accountability Act 1997; and (b) for any other property—the Commissioner may, as appropriate, dispose of the property in accordance with subregulation 30 (2) or direct that the property be disposed of in accordance with subregulation 30 (3) or (4) (as if those subregulations applied to the property). Note for paragraph (a): See the Financial Management and Accountability Act 1997 for how public money is dealt with. #### 32 Notice of, and proceeds of, sale of property (1) For the purposes of disposal of property by public auction, under regulations 30 and 31, the Commissioner must publish a notice of the proposed sale of unclaimed property by public auction: (a) at least 7 days before the expected date of the auction; and (b) in a daily newspaper circulating generally in the State or Territory in which the auction is to be held. (2) The proceeds of the sale constitute public money within the meaning of the Financial Management and Accountability Act 1997. (3) After disposal of the property under regulation 30 or 31, a person who has an interest in the property before the disposal has no right of action against the Commonwealth in relation to that interest. > Note: See the Financial Management and Accountability Act 1997 for how public money is dealt with. ## Part 6—Miscellaneous #### 33 Delegation The Commissioner may in writing delegate any of his or her powers under these Regulations to: (a) a Deputy Commissioner; or (b) an AFP employee; or (c) a special member. #### 34 Police services rendered to the public or to an authority of the Commonwealth (1) Subject to subregulation (2), the fee for a police service that is: (a) referred to in column 2 of an item in Schedule 2; and (b) rendered by the Australian Federal Police to: (i) an authority of the Commonwealth, if rendering the service is a function of the Australian Federal Police; or (ii) an individual at the request of, or under an agreement with, the individual; or (iii) a body corporate at the request of, or under an agreement with, the body; or (iv) any other organisation (other than an authority of the Commonwealth) at the request of, or under an agreement with, the organisation; is set out in column 3 of the item. (2) For items 1, 2 and 4 of Schedule 2, the fee is the sum of: (a) the amount mentioned in the item; and (b) any amount payable by the AFP in the course of providing the service, rounded up to the nearest dollar. > Note: Authority of the Commonwealth is defined in section 4 of the Act. #### 35 Waiver and exemption of fees (1) The Commissioner may waive payment of the whole or part of a fee payable under regulation 34 where: (a) payment of the fee would cause financial hardship; or (b) for any other reason, the Commissioner considers it appropriate to do so. (2) A fee is not payable under regulation 34 where it relates to an activity conducted for a charitable purpose. ## Part 7—Application and transitional provisions ### Division 1—Provisions relating to the Australian Federal Police Amendment (Workplace Drug Testing and Other Measures) Regulation 2015 #### 36 Definitions In this Part: > amending regulation means the Australian Federal Police Amendment (Workplace Drug Testing and Other Measures) Regulation 2015. > commencement day means the day the amending regulation commences. #### 37 Application of amendments (1) The amendments made by items 2, 3, 4, 5, 6, 8, 14, 15, 18, 22, 23, 24, 26, 27, 28, 30 and 31 of Schedule 1 to the amending regulation apply in relation to body samples and other records relevant to an alcohol screening test, a breath test, a blood test or a prohibited drug test conducted on or after the commencement day. (2) Subregulation 5(3) and regulation 5A, as inserted by the amending regulation, apply in relation to an AFP employee who is suspended on or after the commencement day (whether the suspension began before, or begins on or after, that day). (3) The amendment of regulation 13V made by Schedule 1 to the amending regulation applies in relation to a sample that is collected on or after the commencement day. #### 38 Repeal of this Part This Part is repealed on 1 July 2016.