Law Enforcement (AFP Professional Standards and Related Measures) Act 2006

AFP appointee is a defined term that covers Deputy Commissioners, AFP employees, special members, special protective service officers, persons engaged overseas under section 69A, certain consultants and independent contractors determined by the Commissioner, and persons assisting the AFP under an agreement under section 69D (subsection 4(1), item 2 of Schedule 1). This broader definition replaces references that were limited to employees or members.

AFP conduct issue means an issue of whether an AFP appointee has engaged in conduct that contravenes the AFP professional standards or that constitutes corrupt conduct (section 40RH). The definition extends to conduct engaged in when not on duty, conduct of a private character, conduct before the person became an appointee, conduct outside Australia, and conduct where the appointee’s identity is unknown. It does not include employment‑related action that involves neither a contravention of professional standards nor corrupt conduct (section 40RJ). AFP practices issue means an issue about the practices or procedures of the AFP, including whether they are contrary to law, unreasonable, unjust, oppressive, improperly discriminatory, inadequate, or otherwise wrong or inappropriate (section 40RI). Practices and procedures include Commissioner’s Orders, policies, and ordinary practices of AFP appointees. Employment‑related practices that do not involve contraventions or corruption are excluded (section 40RJ).

The Act creates four categories of conduct. Category 1 is inappropriate conduct relating to minor management or customer service matters or showing a need for performance improvement, and must not warrant category 2 or 3 treatment (section 40RN). Category 2 is minor misconduct or inappropriate conduct that reveals unsatisfactory behaviour, otherwise category 1 but repeated, and not warranting category 3 (section 40RO). Category 3 is serious misconduct, conduct raising the question of termination, breach of criminal law, or serious neglect of duty, and must not raise a corruption issue (section 40RP). Corruption issue has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006 (item 15). If conduct would fall into more than one category, it belongs to the higher or highest category (section 40RK(6)). The category may change as more information is obtained (section 40RK(7)).

AFP professional standards are determined by the Commissioner through Commissioner’s Orders made for the purposes of section 40RC (item 6). The Commissioner may determine standards by reference to other orders or documents issued under section 37, and those documents may be as in force from time to time or at a particular time (section 40RC(3)). The Commissioner must constitute a dedicated unit to investigate category 3 conduct issues and corruption issues (section 40RD). The head of that unit is appointed by the Commissioner and reports directly to the Commissioner or a nominated Deputy Commissioner or equivalent (section 40RE). Members and special members may be assigned to the unit for up to two years, renewable after a 12‑month break (sections 40RF, 40RG). Investigators for category 3 and corruption issues are allocated either within or outside that unit, subject to consultation with the Ombudsman or Integrity Commissioner in certain circumstances (sections 40TN, 40TO, 40TP).

Training and development action includes coaching, mentoring, training activities, development activities, and increased supervision (section 40TC). Remedial action includes counselling, reprimands, warnings, improvement strategies, shift changes, duty restrictions, reassignment, and transfer (section 40TD). Termination action varies by appointee type: for a Deputy Commissioner it means the Governor‑General terminating the appointment; for an AFP employee it means the Commissioner terminating employment under section 28; similar termination applies to special members, special protective service officers, overseas employees, consultants/contractors, and persons assisting under section 69D (section 40TE). Record keeping is mandatory under section 40WA, with access for the Integrity Commissioner and the Ombudsman. The Integrity Commissioner may direct that access to information about a corruption issue be restricted (section 40WB).

The Act directly affects all AFP appointees as defined. That includes not only AFP employees (sworn and unsworn) and special members, but also Deputy Commissioners, special protective service officers, overseas employees, consultants and independent contractors who are determined to be AFP appointees, and persons assisting the AFP under an agreement under section 69D. The professional standards framework applies to all these individuals regardless of whether the conduct in question occurred on or off duty, within or outside Australia, or before the person became an appointee (section 40RH). AFP employees who resign while under investigation for category 3 conduct or for a corruption issue are also affected because the Commissioner may defer the resignation’s effective date for up to 90 days to allow the investigation to conclude (section 30A). Suspended AFP employees may be required to comply with directions even while suspended, including directions to assist investigations or ensure continuity of duties (Schedule 5, items 6 and 7).

The Ombudsman plays a central role. The Ombudsman jointly determines with the Commissioner the kinds of conduct that constitute categories 1, 2 and 3 (section 40RM). The Ombudsman must be notified of category 3 conduct issues by the head of the professional standards unit (section 40TM). The Ombudsman may arrange for category 3 or practices issues to be dealt with jointly with the AFP (section 8D of the Ombudsman Act 1976, inserted by Schedule 3 item 59). The Ombudsman must be consulted by the Commissioner when allocating a category 3 issue to an investigator outside the unit (section 40TO(6)). The Ombudsman conducts annual and ad‑hoc reviews of the administration of Part V and receives reports from the Commissioner (sections 40XA to 40XD). The Ombudsman may be called the Law Enforcement Ombudsman when performing functions in relation to the AFP (new subsection 4(5) of the Ombudsman Act). The Ombudsman may also decide not to investigate a complaint if it involves an AFP conduct or practices issue that could more conveniently be dealt with under Part V, and must then transfer the information to the Commissioner (new subsections 6(20) and 6(21) of the Ombudsman Act). The Ombudsman may use AFP appointees made available by the Commissioner to assist in investigations (new subsection 8(12) of the Ombudsman Act).

The Integrity Commissioner under the Law Enforcement Integrity Commissioner Act 2006 is also affected. Corruption issues are defined by reference to that Act. The Integrity Commissioner may refer corruption issues to the AFP for investigation under Division 3 of Part V (section 40TL(3)). The Commissioner must consult the Integrity Commissioner about the choice of investigator for a corruption issue allocated outside the unit (section 40TO(7)). The Integrity Commissioner may direct that access to information about a corruption issue be restricted (section 40WB). The Integrity Commissioner is entitled to access records kept under section 40WA.

The Minister is affected through the power to arrange special inquiries under Division 4 (section 40UA). The Minister may direct an inquiry into any conduct of an AFP appointee, any matter relating to AFP practices or procedures, or any other matter relating to the AFP. The Minister must inform the Ombudsman, Integrity Commissioner, and other appropriate persons of the inquiry (section 40UB). The Minister receives the inquiry report and may cause action to be taken, including referral of a corruption issue to the Integrity Commissioner (section 40UD). The Minister also approves screening devices for alcohol tests (section 40R).

Complainants - persons who give information and wish to be kept informed - have a right to be updated on progress and advised of action taken (section 40TA). Persons in custody have specific rights to facilities for preparing and sending sealed envelopes containing information (section 40SB). Those who give information are protected from victimisation: causing or threatening detriment on the ground that someone has given or may give information under Part V is a criminal offence punishable by 6 months imprisonment (section 40YA). Conversely, giving false information knowing it is false in a material particular is an offence (section 40YB).

AFP appointees who are the subject of a complaint or request for information must provide their name, place‑of‑duty address, and identification number when requested by a person who indicates they are complaining or proposing to give information about that appointee’s conduct (section 40YC). Failure to comply or giving false details is an offence (5 penalty units). AFP appointees also face obligations to comply with directions given by investigators under Division 5, with failure punishable by up to 6 months imprisonment (section 40VH).

The Act imposes a primary duty on all AFP appointees to comply with Commissioner’s Orders (section 39, substituted by item 27A) and to obey lawful directions, instructions or orders given by the Commissioner or the appointee under whose control they perform duties (section 40, substituted by item 27B). These duties replace the earlier discipline provisions and are enforceable under the new Part V framework.

A person may give information that raises an AFP conduct or practices issue to the Commissioner or any AFP appointee (section 40SA). The information may be given orally or in writing, and may be given anonymously. If given orally, the recipient may reduce it to writing and may require the person to put it in writing before taking further action (section 40SA(4)). A complainant is a person who expressly or impliedly wishes to be kept informed of action taken (section 40SA(3)). The person giving information has a right to have the information recorded and dealt with in accordance with Commissioner’s Orders (section 40SC), subject to an exception for category 1 conduct issues or practices issues that can be resolved informally by explanation or other action taken within a reasonable time (section 40SC(2)). If informal resolution does not occur within a reasonable time, recording and formal dealing must occur (section 40SC(3)). Information referred by the Ombudsman under subsection 6(21) of the Ombudsman Act is taken to have been given under section 40SA (section 40SA(5)).

Persons in custody have a right to request facilities to prepare and send written information in a sealed envelope, and custodians must not open or inspect such envelopes (section 40SB). The Commissioner may make arrangements with State and Territory authorities for the secure handling of sealed envelopes (section 40SB(9)).

The Commissioner has a duty to ensure that complainants in relation to both conduct issues and practices issues are kept informed of progress and advised of any action taken, as far as is reasonable and practicable (section 40TA(2), (3)). The Commissioner may also decide on his or her own initiative that an AFP conduct issue is to be dealt with under Part V (section 40SD). The Commissioner may determine that no further action is taken if satisfied of one of the grounds in section 40TF, such as the information being given more than 12 months after the person became aware of the conduct, appropriate action already taken, the giving of information is frivolous or vexatious, or the conduct when off duty was lawful and reasonable. The Commissioner’s discretion is broad but must be exercised within those grounds.

Managers for category 1 and 2 conduct issues must ensure the AFP appointee and the complainant (if any) have an adequate opportunity to be heard, involve the appointee in resolution as far as practicable, determine what action to take (training and development for category 1; training and development and/or remedial for category 2), and consider whether an AFP practices issue is raised (section 40TH). The manager may attempt conciliation, and information given during conciliation is not admissible against the appointee in any criminal or civil proceedings (section 40TH(4)). Investigators for category 3 and corruption issues have a duty to ensure the appointee and complainant have an adequate opportunity to be heard, subject to the requirements of the investigation, and to consider whether an AFP practices issue is raised (section 40TQ). The investigator may recommend termination action, remedial action, training and development, or any other action the Commissioner can take (section 40TR). The investigator may arrange for the appointee to be charged with an offence even before the investigation is completed (note to section 40TR(1)). The investigator must prepare a written report on completion (section 40TU), and the Commissioner must ensure the recommendations are fully considered and appropriate action taken (section 40TV).

Investigators have extensive powers under Division 5: they may direct an AFP appointee to give information, produce documents or things, answer questions, or do anything else reasonably necessary for obtaining evidence (section 40VE). The direction must state it is given under that subsection and specify the substance of the subject matter. Compliance is compulsory; failure is an offence (section 40VH). However, information, documents, answers or evidence obtained through a direction are not admissible against the appointee in any civil or criminal proceedings other than proceedings for an offence under section 40VH, termination proceedings, proceedings under the Safety, Rehabilitation and Compensation Act 1988, or tort proceedings instituted by the appointee against the Commonwealth (section 40VE(4)). Investigators may also enter and search AFP premises (section 40VF). For ministerial inquiries, investigators have additional powers to administer oaths, examine on oath, and make sound recordings (section 40VG). The Ombudsman when acting as investigator has the same powers as under the Ombudsman Act 1976 (section 40TS(3)).

Records must be kept of all information given under section 40SA, the action taken, and any practices issues identified as a result (section 40WA). The Integrity Commissioner and the Ombudsman are entitled to access these records (sections 40WA(4), (5)). The Integrity Commissioner may direct that access to information about a corruption issue be restricted (section 40WB).

The Act creates several specific criminal offences. Section 40YA makes it an offence to cause or threaten detriment to another person on the ground that the victim or any other person has given or may give information under Part V, or has produced or may produce a document, record or thing. The offence carries a maximum penalty of imprisonment for 6 months. A threat may be express or implied, conditional or unconditional, and the prosecution need not prove the threatened person actually feared the threat would be carried out (section 40YA(2), (3)). This provision protects whistleblowers and complainants from retaliation.

Section 40YB makes it an offence to give information under section 40SA, or otherwise give an AFP appointee information in relation to an AFP conduct or practices issue, if the person knows the information is false in a material particular. The penalty is 20 penalty units. This targets malicious or vexatious complaints.

Section 40YC imposes an offence on an AFP appointee who, when requested by a person who indicates they are complaining or proposing to give information about that appointee’s conduct, refuses or fails without reasonable excuse to provide their name, place‑of‑duty address, or identification number, or gives false information. The penalty is 5 penalty units. This ensures accountability and enables complainants to identify the officer concerned.

Section 40VH creates three offences in relation to investigations and inquiries. An AFP appointee commits an offence if they refuse or fail to comply with a direction given under section 40VE(1) or 40VG(2); refuse or fail to be sworn or make an affirmation when required under section 40VG(2); or give information or make a statement knowing it is false or misleading in a material particular. The penalty is imprisonment for 6 months. A reasonable excuse is a defence; the defendant bears an evidential burden in relation to that matter (section 40VH(2), note). The prosecution must prove that the investigator complied with the formal requirements of section 40VE(2) or 40VG(3) regarding the direction (section 40VH(3)). This ensures that the direction is validly given. The admissibility of evidence obtained under compulsion is restricted as described above (section 40VE(4), 40VG(5)), which effectively provides a reverse sanction: if the direction is complied with, the evidence cannot be used against the appointee except in limited proceedings.

The Act does not itself provide for civil penalties for breach of professional standards or for failure to comply with Commissioner’s Orders. Instead, such breaches are addressed through the internal management and investigation framework: training and development action, remedial action, or termination action. The termination action table (section 40TE) specifies how different types of appointees may have their engagements ended. The Commissioner may take termination action even without an investigator’s recommendation (section 40TR(2)). The Act does not prescribe monetary fines for category 1, 2 or 3 conduct as such; the consequences are employment‑related. However, if the conduct also amounts to a criminal offence, the investigator may arrange for the appointee to be charged separately (note to section 40TR(1)). The Ombudsman’s review function under Division 7 does not carry direct enforcement powers but may result in recommendations for administrative changes. The Ombudsman must report annually to Parliament on comprehensiveness and adequacy of administration (section 40XD).

The Act interacts with several other Commonwealth enactments. The most significant is the Law Enforcement Integrity Commissioner Act 2006. The definition of corrupt conduct and corruption issue in the AFP Act directly imports the meaning from that Act (items 15 and 16 of Schedule 1). Division 3 of Part V applies when the Commissioner notifies the Integrity Commissioner of a corruption issue under section 19 of that Act and the AFP investigates under subsection 22(1), or when the Integrity Commissioner refers a corruption issue to the AFP (section 40TL(3)). The Commissioner must consult the Integrity Commissioner about the choice of investigator for a corruption issue allocated outside the professional standards unit (section 40TO(7)). The Integrity Commissioner may restrict access to information about corruption issues (section 40WB). The Ombudsman Act 1976 is extensively amended by Schedule 3. The Ombudsman gains new functions: the Ombudsman may choose to be called the Law Enforcement Ombudsman when acting in relation to the AFP (new subsection 4(5)). The Ombudsman may decide not to investigate a complaint if it raises an AFP conduct or practices issue that could be more conveniently dealt with under Part V, and must then transfer the information to the Commissioner (new subsections 6(20), 6(21)). The Ombudsman may arrange for category 3 conduct issues or AFP practices issues to be dealt with jointly with the AFP (new section 8D). The Ombudsman may use AFP appointees made available by the Commissioner to assist investigations (new subsection 8(12)). The Ombudsman’s secrecy obligations (section 35 of the Ombudsman Act) are extended to cover information obtained under Division 7 of Part V. The Ombudsman’s annual report functions under the Ombudsman Act are supplemented by the separate reporting requirements under section 40XD of the AFP Act.

The Act interacts with the Workplace Relations Act 1996. The definition of collective agreement in Schedule 5 item 1 adopts the meaning under that Act. The suspension provisions (new subsection 40J(2)) allow a suspended employee to take annual leave if the relevant certified agreement or collective agreement would otherwise require it, or if the employee applies to take annual leave while suspended without remuneration (item 6). A termination recommendation under section 40TR may lead to termination under section 28 of the AFP Act. The Workplace Relations Act would otherwise apply to termination of employment, but paragraph 69B(1)(b) of the AFP Act is amended to exclude matters covered by Part V or any action (other than termination under section 28) from the operation of the Workplace Relations Act (Schedule 3 item 22). This preserves the internal disciplinary framework.

The Act interacts with the Crimes Act 1914. Schedule 3 item 33 amends paragraph 3L(1B)(b) of the Crimes Act to replace the reference to the Complaints (AFP) Act with a reference to the Ombudsman Act in relation to AFP. Item 34 adds a new subparagraph exempting investigations or resolution of AFP conduct or practices issues under Part V from certain constraints. Items 35-45 amend the Criminal Code Act 1995 to update references from the repealed Complaints Act to the new Part V framework, specifically regarding persons detained under preventative detention orders. Persons in detention must be informed of their right to give information under section 40SA, and are entitled to contact the Ombudsman or a person referred to in section 40SA(1) and to facilities for doing so (items 37, 38, 39, 40, 42, 43, 44). The Witness Protection Act 1994 is amended to replace references to the Complaints Act with references to Part V of the AFP Act (items 65, 66). The Australian Crime Commission Act 2002 is amended to remove references to the repealed Act and to update definitions (items 2, 3). The Administrative Decisions (Judicial Review) Act 1977 is amended to replace a reference to subsection 24(2A) of the Complaints Act with a reference to section 40TF of the AFP Act (item 1). This preserves the right to judicial review of certain decisions made under the new Part V.

The Act interacts with the Australian Security Intelligence Organisation Act 1979 through Schedule 3A. The amendments (which did not commence if certain conditions were met, as per the commencement table) would have updated references to the Complaints Act and inserted references to Part V, giving persons detained under ASIO powers rights to give information under section 40SA (Schedule 3A items 1-9, 10-22). These amendments are contingent on the commencement of the ASIO Legislation Amendment Act 2006.

The Safety, Rehabilitation and Compensation Act 1988 is relevant because test results under section 40Q and written information or answers obtained under direction are admissible in proceedings under that Act (sections 40Q, 40VE(4)(c), 40VG(5)(c)). The Act also interacts with the general law of tort: proceedings in tort against the Commonwealth instituted by the appointee are one of the limited proceedings in which directed evidence may be used (sections 40VE(4)(d), 40VG(5)(d)).

The Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 is itself an amending Act. It does not have a subsequent amendment history within the source provided; the source is the Act as originally enacted. However, the Act’s own commencement table (section 2) shows that Schedules 1, 2, 3, 4 and 5 commenced on 30 December 2006, at the same time as section 3 of the Law Enforcement Integrity Commissioner Act 2006. Schedule 3A Part 1 did not commence at all because the condition for its commencement was not met (the ASIO Legislation Amendment Act 2006 commenced before or at the same time as the Integrity Commissioner Act). Schedule 3A Part 2 commenced on 30 December 2006 but only if Schedule 2 to the ASIO Legislation Amendment Act 2006 had commenced. The Act itself received Royal Assent on 30 June 2006.

The Act repealed the Complaints (Australian Federal Police) Act 1981 in its entirety (Schedule 2). It repealed Division 3 of Part VA of the AFP Act 1979 (the former disciplinary tribunal provisions) and section 52 (Schedule 3 items 14, 15). It also repealed the definitions of Complaints Act, Disciplinary Tribunal, Federal Court, and relevant disciplinary offence in section 41 of the AFP Act (items 10-13). It substituted new sections 39 and 40 regarding compliance with orders and directions (items 27A, 27B). It inserted new Part V (sections 40RA to 40ZA), new alcohol screening provisions (sections 40LA, 40PA, 40R), and new resignation and suspension provisions (sections 30A, amendments to section 40J). It also amended the Ombudsman Act 1976 to insert new sections 6(20), (21), 8(12), 8A(1A)-(1D), 8D, and to extend secrecy and reporting provisions.

The source text does not include any amendments made to this Act after its enactment. Therefore, the amendment history described here reflects the Act as it was at the time of assent, with the commencement schedules as noted.

The source text of the Act does not refer to any specific court cases, litigation history, or judicial decisions. The Act itself is an amending statute that establishes a new framework; it does not contain any references to prior litigation or case law interpreting its provisions. The consequential amendments to the Administrative Decisions (Judicial Review) Act 1977 (Schedule 3 item 1) indicate that decisions under section 40TF (the discretion to take no further action) may be subject to judicial review under that Act, but no cases are mentioned. Similarly, the Act’s provisions on the admissibility of compelled evidence in certain proceedings (sections 40VE(4), 40VG(5), 40Q) may give rise to litigation about the scope of those limitations, but the source is silent on any such litigation. The Ombudsman’s annual reports to Parliament under section 40XD may contain findings and recommendations, but those are not litigation. In summary, no litigation history is provided in the source, and we cannot invent any.

Several aspects of the Act are likely to catch practitioners unawares. First, the definition of AFP conduct issue is extremely broad. It covers conduct that contravenes the AFP professional standards or corrupt conduct, and it applies even if the appointee has ceased to be an appointee, the conduct was off duty, private, occurred before the person became an appointee, or was engaged in before the section commenced (section 40RH(2)). It also covers conduct outside Australia and conduct where the identity of the appointee is unknown (section 40RH(3), (4)). This means that historic conduct, private conduct, or even conduct by a former appointee can still be the subject of an AFP conduct issue under Part V. However, there is a carve‑out: employment‑related action that does not involve a contravention of professional standards or corrupt conduct is excluded (section 40RJ). This is important because it means that routine management decisions about promotion, terms and conditions, or performance management (if not connected to professional standards) are not conduct issues under Part V, and should be dealt with through other employment mechanisms.

Second, the category to which conduct belongs may change as more information is obtained (section 40RK(7)). This means that what starts as a category 1 matter can be reclassified as category 2 or 3 if further evidence emerges. Investigators and managers must remain alert to this possibility and escalate appropriately. The Commissioner and Ombudsman jointly determine the kinds of conduct for each category, but if there is no determination, conduct is taken to be category 3 (section 40RM(2)). This default is a significant gotcha: until a determination is made (and the Act required one within 3 months of commencement, per Schedule 1 item 30), all conduct might be treated as serious unless the Commissioner and Ombudsman have agreed otherwise. The default to category 3 triggers the formal investigation and termination action pathway.

Third, the power of investigators under Division 5 to compel AFP appointees to provide information, produce documents, and answer questions is backed by criminal penalties, but the compelled evidence is not admissible against the appointee in most proceedings (section 40VE(4), 40VG(5)). The admissibility exceptions are limited: proceedings for an offence against section 40VH, termination proceedings, proceedings under the Safety, Rehabilitation and Compensation Act 1988, and tort proceedings instituted by the appointee. This creates a complex evidentiary landscape. In particular, evidence obtained under compulsion cannot be used in criminal proceedings against the appointee (except for the section 40VH offence), so the investigator must carefully consider whether to use the direction power or to rely on voluntary cooperation when building a criminal case. The direction must expressly state that it is given under section 40VE(1) or 40VG(2); if it does not, then the evidence may be admissible without restriction (section 40VE(5), 40VG(6)). This is a potential pitfall for investigators who fail to use the correct form of words.

Fourth, the power to require an alcohol screening test under new section 40LA applies only when the authorised manager reasonably suspects the appointee is under the influence of alcohol while on duty. Refusal leads to a written direction to undergo a breath test (section 40LA(4)). The test results and related certificates are admissible only in termination proceedings, Safety, Rehabilitation and Compensation Act proceedings, or tort proceedings against the Commonwealth (new section 40Q). This means the results cannot be used in criminal proceedings for driving under the influence or similar offences unless otherwise admissible under other laws. The note to section 40LA(5) says this section does not limit the operation of section 40M (breath tests), but the admissibility limitation in section 40Q applies to both.

Fifth, the resignation deferral mechanism under new section 30A applies only when the AFP employee is under investigation for category 3 conduct or a corruption issue. It does not apply to category 1 or 2 conduct issues. If the employee resigns before the Commissioner can act, the Commissioner may defer the effective date by up to 90 days, but must then either accept the resignation or terminate employment. This prevents employees from escaping accountability by resigning mid‑investigation. However, the clock starts from the date specified in the employee’s resignation notice, and the Commissioner must give the first deferral notice before that date (section 30A(4)). Missing that deadline may mean the resignation takes effect as originally specified.

Sixth, the Ombudsman may transfer a complaint to the AFP under new subsection 6(20) of the Ombudsman Act if it could be more conveniently or effectively dealt with under Part V. The person who originally complained to the Ombudsman is then taken to have given information under section 40SA (section 40SA(5)). However, the Ombudsman’s decision to transfer is not reviewable under the Part V framework itself; it is a decision under the Ombudsman Act. The person may lose the right to have the complaint investigated by the Ombudsman and must rely on the AFP’s internal processes.

Seventh, the secrecy provision in section 40ZA applies to persons other than AFP appointees or the Ombudsman who conduct investigations or inquiries - typically external investigators or inquiry panel members. It does not apply to AFP appointees, who are covered by the existing confidentiality requirements of section 60A of the AFP Act. But it does apply to, for example, a barrister or retired judge appointed to conduct a ministerial inquiry. Unauthorised disclosure of information obtained during the investigation or inquiry is an offence (30 penalty units), subject to exceptions for the purposes of the investigation, with written consent, or in evidence before a court.

For AFP appointees, compliance begins with understanding that all conduct, on or off duty, may fall within the definition of AFP conduct issue if it contravenes the AFP professional standards or amounts to corrupt conduct. Appointees should familiarise themselves with the professional standards determined by Commissioner’s Orders made under section 40RC, and with the category determinations jointly made by the Commissioner and Ombudsman. These category determinations (a legislative instrument under section 40RM(1)) will specify exactly which types of conduct belong to category 1, 2 or 3. In the absence of a determination, all conduct defaults to category 3 (section 40RM(2)), so appointees should assume the highest possible seriousness until the joint determination is published.

Appointees must comply with all lawful directions and with Commissioner’s Orders (sections 39, 40). If directed to provide information, produce documents, or answer questions by an investigator under Division 5, they must comply despite any claim of public interest immunity, self‑incrimination, or other ground (section 40VE(3)). However, they should note that the compelled evidence will not be admissible against them except in limited proceedings. If they refuse or fail to comply without reasonable excuse, they face up to 6 months imprisonment (section 40VH). A reasonable excuse might include physical or legal impossibility, but mere inconvenience or fear of penalty is not a defence given the overriding wording of section 40VE(3). The investigator must state in the direction that it is given under section 40VE(1) and specify the substance of the subject matter; if the direction does not meet these formalities, the appointee may be able to challenge its validity, but should still seek legal advice before refusing.

When an appointee is the subject of a category 1 or 2 conduct issue, they have a right to be heard and to be involved in the resolution as far as practicable (section 40TH(1)). They may participate in conciliation, and any information given during conciliation is not admissible against them in any subsequent criminal or civil proceedings (section 40TH(4)). They should take advantage of this protection to engage openly in the conciliation process. If the manager is satisfied on reasonable grounds that the appointee engaged in the conduct, the manager may take training and development or remedial action. The appointee should cooperate and may propose alternative measures to address the conduct.

For category 3 or corruption issues, the appointee again has a right to be heard, subject to the requirements of the investigation (section 40TQ(2)). The appointee should consider whether to provide information voluntarily, which may be admissible in criminal proceedings, rather than waiting for a compulsory direction that triggers the admissibility restrictions. The note to section 40TR(1) indicates that the investigator may arrange for the appointee to be charged with a criminal offence even before the investigation of the issue is completed. Legal representation is not explicitly provided for in the Act, but is likely allowed as a matter of procedural fairness and natural justice.

AFP appointees who are managers for category 1 or 2 issues should follow the Commissioner’s Orders issued under section 40TA. They must ensure the appointee and complainant are given an adequate opportunity to be heard, involve the appointee in resolution, determine appropriate action, and consider whether an AFP practices issue is raised (section 40TH). They should keep records as required by the Commissioner’s Orders. They may use conciliation and must remember that conciliation statements are inadmissible. For category 2 conduct they may impose remedial or training and development action; for category 1 only training and development action.

Managers should also be aware that if the conduct involves a possible corruption issue, they must escalate it to the professional standards unit immediately, as category 3 or corruption issues must be dealt with under Subdivision D. The head of the unit must notify the Ombudsman of category 3 issues (section 40TM). Investigators allocated to category 3 or corruption issues must have appropriate qualifications or experience (section 40TP). They must prepare a written report on completion and ensure recommendations are fully considered (sections 40TU, 40TV). The Commissioner must take appropriate action on the report.

The Commissioner must constitute and maintain the professional standards unit with adequate staffing (section 40RD(4)), ensure record‑keeping (section 40WA), and provide access to the Ombudsman and Integrity Commissioner. The Commissioner should promptly consult with the Ombudsman when allocating investigators outside the unit (section 40TO(6)) and with the Integrity Commissioner for corruption issues (section 40TO(7)). The Commissioner must also publish prescribed particulars about conduct issues in the annual report (new subsection 67(1A)).

For the Ombudsman, compliance involves conducting annual and ad‑hoc reviews, inspecting records, and reporting to Parliament (sections 40XA to 40XD). The Ombudsman must be consulted on category determinations and on investigator appointments. The Ombudsman may arrange joint investigations with the AFP (new section 8D of the Ombudsman Act) and may transfer complaints to the AFP (new subsections 6(20), 6(21)).

For the Minister, compliance involves arranging special inquiries only when appropriate, informing the Ombudsman and Integrity Commissioner, and considering the inquiry report (sections 40UA to 40UD). The Minister must approve screening devices under section 40R by legislative instrument. The Minister’s recommendations from an inquiry report may include referral of a corruption issue to the Integrity Commissioner.

Overall, compliance with Part V requires careful attention to the category of conduct, the procedural rights of all parties, the mandatory consultation requirements, and the record‑keeping and reporting obligations. The interplay between compulsory process and admissibility of evidence is the most complex area, and legal advice should be sought before using or responding to compulsory directions.