Div 1Preliminary

Division 1—Preliminary Subdivision A—Objects and simplified outline of Part 40RA  Object of this Part   The object of this Part is to establish the procedures by which:  (a) AFP conduct issues and AFP practices issues; and  (b) other issues related to the Australian Federal Police; may be raised and dealt with. 40RB  Simplified outline of this Part  (1) This Part deals with the handling of:  (a) AFP conduct issues and AFP practices issues; and  (b) other issues related to the Australian Federal Police.  (2) These issues may be:  (a) issues that are raised by information given to the Australian Federal Police (see section 40SA); or  (b) issues that the Commissioner decides, on his or her own initiative, are to be dealt with under this Part (see section 40SD); or  (c) issues that are referred to the Australian Federal Police by the Integrity Commissioner under the Law Enforcement Integrity Commissioner Act 2006 or by the Ombudsman under the Ombudsman Act 1976; or  (d) issues that the Minister directs are to be inquired into under Division 4.  (3) How a particular AFP conduct issue is dealt with depends on the category to which the issue belongs. Sections 40RK to 40RP deal with the categorisation of AFP conduct issues.  (4) AFP conduct issues that belong to the 2 less serious categories (categories 1 and 2) are dealt with managerially and may be addressed by training and development action (see section 40TC) or remedial action (see section 40TD).  (5) AFP conduct issues that belong to the 2 more serious categories (category 3 and corruption issues) are dealt with through more formal investigations and may be addressed not only by training and development action and remedial action but also by termination action (see section 40TE) and other action. The investigation may also give rise to a prosecution for an offence.  (6) Division 5 confers special investigative powers on people who conduct:  (a) investigations under Division 3 of category 3 conduct issues or corruption issues; or  (b) inquiries under Division 4.  (7) The Ombudsman plays a number of roles under this Part. The Ombudsman:  (a) determines, jointly with the Commissioner, the particular kinds of conduct that are to belong to the various categories of conduct (see section 40RM); and  (b) is consulted by the Commissioner on the appointment of investigators under section 40TO (see subsection 40TO(6)); and  (c) is entitled under section 40WA to have access to the records that are kept in relation to AFP conduct issues and AFP practices issues under that section; and  (d) conducts annual reviews and ad hoc reviews of the operation of this Part under Division 7. Subdivision B—Professional standards for AFP appointees 40RC  Commissioner may determine professional standards  (1) The Commissioner may issue Commissioner’s orders under section 38 determining the professional standards to be complied with by AFP appointees.  (2) Without limiting subsection (1), the Commissioner may determine a professional standard by reference to the requirements specified in:  (a) another Commissioner’s order; or  (b) another document issued or made by the Commissioner in the exercise of the Commissioner’s powers under section 37.  (3) Despite section 46AA of the Acts Interpretation Act 1901, a document referred to in paragraph (2)(a) or (b) may be a document:  (a) as in force at a particular time; or  (b) as in force from time to time. Subdivision C—Unit within Australian Federal Police to undertake professional standards functions 40RD  Unit to be constituted  (1) The Commissioner must constitute, within the Australian Federal Police, a unit to undertake investigations of:  (a) AFP conduct issues that are category 3 conduct issues; and  (b) corruption issues that relate to conduct engaged in by AFP appointees.  (2) The Commissioner may determine, from time to time, the name by which the unit is to be known.  (3) The establishment of the unit is to be such as the Commissioner determines from time to time.  (4) In determining and varying the establishment of the unit, the Commissioner must ensure, so far as it is practicable for the Commissioner to do so, that the staffing of the unit is adequate to enable the unit to perform its functions under this Part effectively. 40RE  Head of unit  (1) The Commissioner may appoint an AFP appointee, in writing, to be the head of the unit constituted under section 40RD.  (2) The head of the unit is responsible for the performance by the unit of its functions.  (3) The head of the unit is responsible under subsection (2) directly to:  (a) the Commissioner; or  (b) if the Commissioner so directs—the Deputy Commissioner, or senior executive AFP employee who is at a level equivalent to that of a Deputy Commissioner, specified in the direction. 40RF  Assignment of members, and special members, to unit  (1) The Commissioner may, in writing, assign a member, or special member, of the Australian Federal Police to the unit constituted under section 40RD.  (2) The assignment must:  (a) be in writing; and  (b) specify the period during which the member, or special member, is to serve in the unit.  (3) The period specified under paragraph (2)(b) must not exceed 2 years.  (4) If the Commissioner is satisfied that there are special reasons for doing so, the Commissioner may vary, or further vary, the assignment under subsection (1) by substituting for the period specified in the assignment a shorter or longer period.  (5) The period substituted under subsection (4) may exceed 2 years.  (6) As soon as practicable after the member, or special member, has served in the unit for the period specified in the assignment, the Commissioner must arrange for the member, or special member, to cease serving in the unit.  (7) If:  (a) a member, or special member, of the Australian Federal Police is assigned to the unit constituted under section 40RD; and  (b) the member, or special member, ceases to serve in the unit; and  (c) the period of 12 months from the time when the member, or special member, ceased to serve in the unit ends; the member, or special member, may again be assigned to the unit. 40RG  Member or special member in unit may be directed to perform other duties   The Commissioner may direct a member, or special member, of the Australian Federal Police serving in the unit constituted under section 40RD to perform duties that are not related to the unit’s functions but only if those duties do not unduly interfere with the performance by the unit of its functions. Subdivision D—AFP conduct issues and AFP practices issues 40RH  AFP conduct issues  (1) For the purposes of this Act, an AFP conduct issue is an issue of whether an AFP appointee has:  (a) engaged in conduct that contravenes the AFP professional standards; or  (b) engaged in corrupt conduct.  (2) Subsection (1) applies even if:  (a) the AFP appointee who engaged in the conduct has ceased to be an AFP appointee; or  (b) the conduct:  (i) was engaged in while the AFP appointee was not on duty; or  (ii) is conduct of a private character; or  (iii) was engaged in before the AFP appointee became an AFP appointee; or  (c) the conduct that was engaged in by the AFP appointee also involves or implicates someone who is not an AFP appointee; or  (d) the period for bringing a prosecution for an offence, or other proceedings, in relation to the conduct has ended; or  (e) the conduct was engaged in before the commencement of this section.  (3) Subsection (1) applies whether the conduct was engaged in within, or outside, Australia.  (4) To avoid doubt, information may raise an AFP conduct issue even if the identity of the AFP appointee who engaged in the conduct is unknown, is uncertain or is not disclosed in the information.  (5) This section has effect subject to section 40RJ.  (6) A reference in this section to engaging in conduct includes a reference to failing, or refusing, to engage in conduct. 40RI  AFP practices issues  (1) For the purposes of this Act, an AFP practices issue is an issue about the practices or procedures of the Australian Federal Police (whether those practices or procedures are carried out within, or outside, Australia).  (2) Without limiting subsection (1), an AFP practices issue includes an issue of whether a practice or procedure of the Australian Federal Police is or has been:  (a) contrary to law; or  (b) unreasonable, unjust, oppressive or improperly discriminatory; or  (c) inadequate; or  (d) otherwise wrong or inappropriate.  (3) For the purposes of this Act, the practices or procedures of the Australian Federal Police include:  (a) the rules, orders and instructions (including the Commissioner’s Orders) in accordance with which AFP appointees are required to perform their duties; and  (b) the policies adopted or followed by the Australian Federal Police; and  (c) the practices and procedures ordinarily followed by AFP appointees in the performance of their duties.  (4) This section has effect subject to section 40RJ. 40RJ  Exclusion of certain employment action  (1) For the purposes of this Act, an AFP conduct issue does not include an issue that relates to conduct of a person that is conduct that:  (a) consists of action taken in relation to an AFP appointee’s employment; and  (b) involves neither:  (i) a contravention by the person of the AFP professional standards; nor  (ii) corrupt conduct by the person.  (2) For the purposes of this Act, an AFP practices issue does not include an issue that relates a practice or procedure of the Australian Federal Police that is a practice or procedure that:  (a) relates to action taken in relation to AFP appointees’ employment; and  (b) involves neither:  (i) contraventions the AFP professional standards; nor  (ii) corrupt conduct by AFP appointees.  (3) Without limiting subsections (1) and (2), action taken in relation to an AFP appointee’s employment includes action taken in relation to:  (a) the appointment of the AFP appointee; or  (b) the terms and conditions of employment of the AFP appointee; or  (c) the promotion of the AFP appointee; or  (d) the termination of the AFP appointee’s appointment; or  (e) the management of performance that does not meet AFP professional standards; or  (f) the payment of remuneration to the AFP appointee. Subdivision E—Categories of AFP conduct issues and managers 40RK  Categories of conduct  (1) There are 4 categories of conduct for the purposes of this Act.  (2) The lowest, and least serious, is category 1.  (3) The next highest, and next most serious, is category 2.  (4) The next highest, and next most serious, is category 3.  (5) The highest, and most serious, is conduct giving rise to a corruption issue.  (6) If conduct would otherwise belong to more than one category, it is taken to belong to the higher or highest of those categories.  (7) The category to which conduct belongs may change as more information is obtained in relation to the conduct. 40RL  Categories of AFP conduct issues  (1) A category 1 conduct issue is an issue of whether an AFP appointee has engaged in category 1 conduct.  (2) A category 2 conduct issue is an issue of whether an AFP appointee has engaged in category 2 conduct.  (3) A category 3 conduct issue is an issue of whether an AFP appointee has engaged in category 3 conduct. 40RM  AFP Commissioner and Ombudsman to determine the kinds of conduct that are to be category 1, category 2 or category 3 conduct  (1) Subject to sections 40RN, 40RO and 40RP, the Commissioner and the Ombudsman may jointly determine, by legislative instrument:  (a) the kind of conduct that is to be category 1 conduct for the purposes of this Act; and  (b) the kind of conduct that is to be category 2 conduct for the purposes of this Act; and  (c) the kind of conduct that is to be category 3 conduct for the purposes of this Act.  (2) If there is no determination under subsection (1) that applies to particular conduct, the conduct is to be taken to be category 3 conduct for the purposes of this Act. 40RN  Category 1 conduct   The Commissioner and the Ombudsman may determine under subsection 40RM(1) that conduct of a particular kind is to be category 1 conduct for the purposes of this Act only if they are satisfied that:  (a) conduct of that kind is inappropriate conduct that:  (i) relates to minor management matters or customer service matters; or  (ii) reveals a need for improvement in the performance of the AFP appointee concerned; and  (b) conduct of that kind does not warrant being treated as category 2 or category 3 conduct for the purposes of this Act. 40RO  Category 2 conduct   The Commissioner and the Ombudsman may determine under subsection 40RM(1) that conduct of a particular kind is to be category 2 conduct for the purposes of this Act only if they are satisfied that:  (a) conduct of that kind is:  (i) minor misconduct by an AFP appointee; or  (ii) inappropriate conduct that reveals unsatisfactory behaviour by an AFP appointee; and  (b) conduct of that kind:  (i) would otherwise be category 1 conduct; and  (ii) warrants, because of its repeated nature, being treated as category 2 conduct for the purposes of this Act; and  (c) conduct of that kind does not warrant being treated as category 3 conduct for the purposes of this Act. 40RP  Category 3 conduct  (1) The Commissioner and the Ombudsman may determine under subsection 40RM(1) that conduct of a particular kind is to be category 3 conduct for the purposes of this Act only if they are satisfied that:  (a) conduct of that kind:  (i) is serious misconduct by an AFP appointee; or  (ii) raises the question whether termination action should be taken in relation to an AFP appointee; or  (iii) involves a breach of the criminal law, or serious neglect of duty, by an AFP appointee; and  (b) conduct of that kind does not raise a corruption issue.  (2) Subparagraphs (1)(a)(ii) and (iii) do not limit subparagraph (1)(a)(i). 40RQ  Managers for particular categories of AFP conduct issues   The Commissioner may issue Commissioner’s orders under section 38:  (a) authorising particular kinds of AFP appointees to act as managers for category 1 conduct issues; or  (b) authorising particular kinds of AFP appointees to act as managers for category 2 conduct issues.