67Charges in respect of breaches of discipline

#### 67 Charges in respect of breaches of discipline (1) Subject to section 52A, proceedings must be heard and determined by the Disciplinary Tribunal if the proceedings are begun by the Commissioner against an AFP appointee under the prescribed regulations in respect of a breach of discipline as a result of: (a) an investigation of a complaint that was referred to the Commissioner by the Ombudsman; or (b) an investigation of a complaint that: (i) was referred to the Investigation Division under section 6; and (ii) was not made by a person known by the Commissioner to be an AFP appointee; or (c) an investigation of the actions of the appointee by the Ombudsman under Part III; whether or not also as a result of the appointee not accepting a caution or admonition. (2) Where proceedings (other than proceedings to which subsection (1) applies) are instituted by the Commissioner against an AFP appointee under the prescribed regulations in respect of a breach of discipline and the appointee concerned does not admit the truth of the matters alleged to constitute the breach of discipline, the proceedings shall be heard and determined by the Disciplinary Tribunal: (a) if the appointee requests the Commissioner, in writing, that the proceedings be so heard and determined; or (b) if the Commissioner determines, in writing, that it would be desirable for the proceedings to be so heard and determined. (3) Where the Disciplinary Tribunal, in proceedings heard by it in pursuance of subsection (1) or (2), finds an AFP appointee guilty of a breach of discipline: (a) if the Tribunal is constituted by the President or a Deputy President—the Tribunal may, subject to subsections (5) and (7), impose on the appointee, in respect of the breach of discipline, such penalty as the Tribunal deems fit, being a penalty that the Commissioner would have had the power to impose upon the appointee, under the prescribed regulations, in respect of the breach of discipline if the Commissioner had heard and determined the proceedings and found the appointee guilty of that breach of discipline; or (b) if the Tribunal is not so constituted—the Tribunal shall inform the Commissioner, in writing, of its findings in the proceedings and remit the proceedings to the Commissioner for the imposition of a penalty on the appointee in respect of the breach of discipline. (5) Before imposing a penalty under paragraph (3)(a) in respect of a breach of discipline, the Disciplinary Tribunal shall afford the Commissioner (or another AFP appointee nominated by the Commissioner) and the AFP appointee concerned the opportunity to make representations with respect to the penalty that it would be appropriate to impose in respect of that breach of discipline. (6) Where the Disciplinary Tribunal remits proceedings to the Commissioner under paragraph (3)(b) for the imposition of a penalty on a member in respect of a breach of discipline, the Commissioner may, subject to subsection (7), impose on the appointee, in respect of the breach of discipline, such penalty as he or she thinks fit, being a penalty that the Commissioner would have had the power to impose on the appointee, under the prescribed regulations, if the Commissioner had heard and determined the proceedings and found the appointee guilty of the breach of discipline. (7) The Commissioner shall not, under subsection (6), impose on an AFP appointee a penalty by way of dismissing him or her from the Australian Federal Police unless the Commissioner: (a) has caused to be served on the appointee a notice informing the appointee: (i) that he or she considers that it might be appropriate to impose that penalty on the appointee; and (ii) that the appointee may, within 7 days after service of the notice, deliver to the Commissioner any written statement that the appointee wishes to be taken into consideration in deciding the appropriate penalty to be imposed; and (b) has, before imposing such a penalty, taken into consideration the matters contained in any statements delivered in accordance with the notice; but nothing in this subsection prejudices the rights of the appointee under sections 74 and 75. (8) The provisions of the Australian Federal Police Act 1979 and of the regulations in force under that Act apply to any penalty imposed under this section as if it had been imposed by the Commissioner under the prescribed regulations. (9) Subject to subsection (10), as soon as practicable after the Disciplinary Tribunal has made its findings in respect of proceedings heard by it under subsection (1), the Commissioner must, unless the identity of the complainant is not known, cause particulars of the decision to be given, in writing, to the complainant. (10) The Commissioner must not cause particulars of the decision to be given under subsection (9) if the Disciplinary Tribunal makes a decision prohibiting or restricting the disclosure of the findings.