Div 3Dealing with AFP conduct or practices issues

Division 3—Dealing with AFP conduct or practices issues Subdivision A—Preliminary 40TA  Commissioner’s orders about how AFP conduct or practices issues are dealt with  (1) The Commissioner may issue Commissioner’s orders under section 38 in relation to how:  (a) AFP conduct or practices issues; and  (b) information about AFP conduct or practices issues; are to be dealt with by AFP appointees under this Part.  (2) Without limiting subsection (1), the Commissioner must, so far as practicable, ensure that the complainant (if any) in relation to an AFP conduct issue:  (a) is kept informed, as frequently as is reasonable, and to the extent that is reasonable, in the circumstances, of progress in dealing with:  (i) the AFP conduct issue; and  (ii) any AFP practices issue that the person to whom the issue is allocated identifies in the course of dealing with the AFP conduct issue; and  (b) is advised of any action taken in relation to an issue referred to in paragraph (a).  (3) Without limiting subsection (1), the Commissioner must, so far as practicable, ensure that the complainant (if any) in relation to an AFP practices issue:  (a) is kept informed, as frequently as is reasonable, and to the extent that is reasonable, in the circumstances, of progress in dealing with the AFP practices issue; and  (b) is advised of any action taken in relation to the AFP practices issue. 40TB  Dealing with related AFP conduct issues that have different categories   If:  (a) a number of AFP conduct issues relate to the same AFP appointee; and  (b) those AFP conduct issues belong to different categories; those AFP conduct issues may be dealt with together as if they all belonged to the higher or highest of those categories. 40TC  Training and development action  (1) For the purposes of this Act, training and development action in relation to an AFP appointee is action taken to improve the appointee’s performance through training and development.  (2) Without limiting subsection (1), training and development action in relation to the AFP appointee may take one or more of the following forms:  (a) coaching the AFP appointee or making arrangements for the AFP appointee to be coached;  (b) mentoring the AFP appointee or making arrangements for the AFP appointee to be mentored;  (c) making arrangements for the AFP appointee to undertake training activities;  (d) making arrangements for the AFP appointee to undertake development activities;  (e) increasing, or making arrangements for increasing, the level of supervision of the AFP appointee’s work. 40TD  Remedial action  (1) For the purposes of this Act, remedial action in relation to an AFP appointee is action taken to remedy unsatisfactory performance by the AFP appointee.  (2) Without limiting subsection (1), remedial action in relation to the AFP appointee may include one or more of the following:  (a) action taken to improve the AFP appointee’s behaviour;  (b) structured changes to the AFP appointee’s employment;  (c) the recording of adverse findings against the AFP appointee (whether for a particular period or permanently).  (3) Without limiting paragraph (2)(a), remedial action in relation to the AFP appointee may take one or more of the following forms:  (a) counselling the AFP appointee or arranging for the AFP appointee to be counselled;  (b) reprimanding the AFP appointee;  (c) giving the AFP appointee a formal warning;  (d) requiring the AFP appointee to adopt particular improvement strategies.  (4) Without limiting paragraph (2)(b), remedial action in relation to the AFP appointee may take one or more of the following forms:  (a) changing the AFP appointee’s shifts or arranging for or recommending such a change;  (b) restricting the AFP appointee’s duties or arranging for or recommending such a restriction;  (c) reassigning the AFP appointee to other duties or arranging for or recommending such a reassignment;  (d) transferring the AFP appointee to another part of the Australian Federal Police or arranging for or recommending such a transfer. 40TE  Termination action   The following table sets out the action that is termination action in relation to each kind of AFP appointee for the purposes of this Act:   - Termination action - Item For this kind of AFP appointee ... termination action is ... - 1 a Deputy Commissioner the Governor‑General terminating the Deputy Commissioner’s appointment - 2 an AFP employee the Commissioner terminating the AFP employee’s employment under section 28 - 3 a special member the Commissioner terminating the special member’s appointment as a special member of the Australian Federal Police - 4 a special protective service officer the Commissioner terminating the special protective service officer’s appointment as a special protective service officer of the Australian Federal Police - 5 a person engaged overseas under section 69A to perform duties overseas as an employee of the Australian Federal Police the Commissioner terminating the person’s engagement - 6 a person (the consultant/contractor) who is engaged under section 35 as a consultant, or independent contractor, to perform services for the Australian Federal Police the Commissioner:(a) terminating the consultant/contractor’s engagement; or(b) arranging for a person to cease to perform services for the Australian Federal Police on behalf of the consultant/contractor - 7 a person assisting the Australian Federal Police in the performance of its functions under an agreement under section 69D the Commissioner arranging for the person to cease to assist the Australian Federal Police in the performance of its functions Subdivision B—Discretion to take no further action in relation to issue 40TF  Discretion to take no further action in relation to AFP conduct or practices issue  (a) a person gives information under section 40SA that raises:  (i) an AFP conduct issue in relation to conduct engaged in by an AFP appointee; or  (ii) an AFP practices issue in relation to a practice or procedure of the AFP; or  (b) the Commissioner decides under section 40SD that an AFP conduct issue in relation to an AFP appointee is to be dealt with under this Part.  (2) The Commissioner may determine that no further action is to be taken under this Part in relation to the issue if the Commissioner is satisfied that:  (a) the person became aware of the conduct, or the practice or procedure, more than 12 months before the person gave the information under section 40SA; or  (b) appropriate action has already been taken:  (i) against the AFP appointee in relation to the conduct; or  (ii) in relation to the practice or procedure; or  (c) the person giving the information has exercised a right to have the conduct, or the practice or procedure, reviewed by a court or tribunal constituted by or under a law and there is no special reason to take further action in relation to the conduct or the practice or procedure; or  (d) the person giving the information has a right to have the conduct, or the practice or procedure, reviewed by a court or tribunal constituted by or under a law but has not exercised that right and, having regard to all the circumstances, it would be reasonable for the person to have exercised that right; or  (e) the giving of the information is frivolous or vexatious; or  (f) the information is trivial; or  (g) the person giving the information did not give the information in good faith; or  (h) the person giving the information does not have a sufficient interest in the AFP conduct issue or the AFP practices issue; or  (i) the conduct:  (i) occurred when the AFP appointee was not on duty; or  (ii) was private conduct of the AFP appointee;   and was lawful and reasonable in the circumstances; or  (j) the person giving the information is an AFP appointee, or has been an AFP appointee, and the information relates to action taken in relation to that AFP appointee as a result of information that was given and dealt with under this Part; or  (k) the investigation, or further investigation, of the issue is not warranted having regard to all the circumstances; or  (l) any other condition specified in the regulations for the purposes of this paragraph is satisfied. Subdivision C—Dealing with category 1 and category 2 conduct issues 40TG  When Subdivision applies  (1) This Subdivision applies if:  (a) information that is given under section 40SA raises an AFP conduct issue in relation to an AFP appointee; and  (b) the issue is a category 1 or category 2 conduct issue; and  (c) the issue is allocated to an AFP appointee (the manager).  (2) This Subdivision also applies if:  (a) the Commissioner decides under section 40SD that an AFP conduct issue in relation to an AFP appointee is to be dealt with under this Part; and  (b) the issue is a category 1 or category 2 conduct issue; and  (c) the issue is allocated to an AFP appointee (the manager). 40TH  How issue is dealt with  (1) In dealing with the AFP conduct issue, the manager must:  (a) ensure that:  (i) the AFP appointee; and  (ii) the complainant (if any);   have an adequate opportunity to be heard in relation to the issue; and  (b) ensure that the AFP appointee is involved, as far as practicable, in the resolution of the issue; and  (c) determine what action (if any) is to be taken under section 40TI or 40TJ in relation to the issue; and  (d) consider whether the information: Note: Paragraph (d)—see also section 40TK.  (2) Without limiting the ways in which the manager may deal with the AFP conduct issue, the manager may:  (a) attempt to resolve the issue by conciliation; or  (b) authorise another AFP appointee to attempt to resolve the issue by conciliation.  (3) To avoid doubt:  (a) the conduct or outcome of conciliation undertaken under subsection (2) does not limit the action that the manager may take under section 40TI or 40TJ; and  (b) the manager may take into account the conduct or outcome of conciliation undertaken under subsection (2) in deciding what action (if any) to take under section 40TI or 40TJ.  (4) Any information that the AFP appointee gives, in the course of conciliation undertaken under subsection (2), to:  (a) the manager; or  (b) the person authorised by the manager to attempt to resolve the AFP conduct issue by conciliation; or  (c) the complainant; is not admissible against the AFP appointee in any criminal or civil proceedings. 40TI  Action that may be taken in relation to category 1 conduct   If the manager is satisfied, on reasonable grounds, that the AFP appointee has engaged in category 1 conduct, the manager may take training and development action in relation to the AFP appointee. Note: For training and development action, see section 40TC. 40TJ  Action that may be taken in relation to category 2 conduct   If the manager is satisfied, on reasonable grounds, that the AFP appointee has engaged in category 2 conduct, the manager may do either or both of the following:  (a) take remedial action in relation to the AFP appointee;  (b) take training and development action in relation to the AFP appointee. Note 1: For remedial action, see section 40TD. Note 2: For training and development action, see section 40TC. 40TK  AFP practices issue identified in course of dealing with AFP conduct issue  (1) This section applies if the manager is satisfied that the information:  (a) given under section 40SA in relation to the AFP conduct issue; or  (b) obtained in the course of dealing with the AFP conduct issue;  (2) The manager must bring the AFP practices issue to the attention of an appropriate AFP appointee.  (3) The manager may make such recommendations as the manager considers appropriate to address the AFP practices issue. Subdivision D—Dealing with category 3 conduct issues and corruption issues 40TL  When Subdivision applies  (1) This Subdivision applies if:  (a) information that is given under section 40SA raises an AFP conduct issue in relation to an AFP appointee; and  (b) the issue is a category 3 conduct issue.  (2) This Subdivision also applies if:  (a) the Commissioner decides under section 40SD that an AFP conduct issue in relation to an AFP appointee is to be dealt with under this Part; and  (b) the issue is a category 3 conduct issue.  (3) This Subdivision also applies if:  (a) the Commissioner notifies the Integrity Commissioner of a corruption issue under section 19 of the Law Enforcement Integrity Commissioner Act 2006 and the Australian Federal Police investigates the issue under subsection 22(1) of that Act; or  (b) a corruption issue relates to the conduct of an AFP appointee and the Integrity Commissioner refers the issue to the Australian Federal Police under Division 2 of Part 4 of that Act.  (4) This Subdivision also applies if the Ombudsman arranges with the Commissioner under section 8D of the Ombudsman Act 1976 for a category 3 conduct issue to be dealt with jointly by the Ombudsman and the Australian Federal Police. 40TM  Head of unit constituted under section 40RD to notify Ombudsman of category 3 conduct issues  (1) The head of the unit constituted under section 40RD must notify the Ombudsman of the issue if the issue is a category 3 conduct issue.  (2) Subsection (1) does not apply if this Subdivision applies to the issue because of subsection 40TL(4) (Ombudsman arranging for issue to be dealt with jointly by Ombudsman and Australian Federal Police). 40TN  Head of unit constituted under section 40RD generally allocates issues for investigation  (1) Subject to section 40TO, the head of the unit constituted under section 40RD must allocate the issue to a person who is a member or special member for investigation.  (2) Without limiting subsection (1), the head of the unit may allocate the issue to himself or herself.  (3) The head of the unit may allocate the issue to a person who is not a member of the unit only with the Commissioner’s agreement. 40TO  Commissioner must allocate issue to someone outside unit constituted under section 40RD in certain circumstances  (a) the issue relates to the conduct of a person who is a member of the unit constituted under section 40RD; or  (b) the issue does not relate to the conduct of a person who is a member of the unit but the Commissioner is satisfied that it would be inappropriate, for any reason, for the issue to be allocated to a person who is a member of that unit for investigation.  (2) The Commissioner must allocate the issue to a person for investigation.  (3) The person to whom the issue is allocated must not be a member of the unit constituted under section 40RD.  (4) A corruption issue must not be allocated to the Ombudsman.  (5) Without limiting subsection (2), the Commissioner may, with the agreement of the Ombudsman, allocate the issue to the Ombudsman if the issue is a category 3 conduct issue.  (6) If:  (a) the issue is a category 3 conduct issue; and  (b) the Commissioner allocates the issue under subsection (2) to someone other than the Ombudsman; the Commissioner must consult with the Ombudsman about the choice of the person to whom the issue is to be allocated.  (7) If the issue is a corruption issue, the Commissioner must consult with the Integrity Commissioner about the choice of the person to whom the issue is to be allocated. 40TP  Persons eligible to have category 3 conduct issue or corruption issue allocated to them   The issue may be allocated to a person under section 40TN or 40TO only if the person has appropriate qualifications or experience to conduct the investigation of the issue. 40TQ  How category 3 conduct issue or corruption issue is dealt with  (1) This section applies if the issue is allocated to a person under section 40TN or 40TO.  (2) In investigating the issue, the investigator must:  (a) ensure that:  (i) the AFP appointee; and  (ii) the complainant (if any);   have, subject to the requirements of the investigation, an adequate opportunity to be heard in relation to the issue; and  (b) consider whether the information: 40TR  Recommendations that may be made in relation to category 3 conduct or corrupt conduct  (1) If the investigator is satisfied, on reasonable grounds, that the AFP appointee has engaged in category 3 conduct or corrupt conduct, the investigator may recommend that any one or more of the following be taken in relation to the AFP appointee:  (a) termination action;  (b) remedial action;  (c) training and development action;  (d) any other action that the Commissioner can take in relation to the AFP appointee. Note 1: For termination action, see section 40TE. Note 2: For remedial action, see section 40TD. Note 3: For training and development action, see section 40TC. Note 4: If evidence emerges, at any stage of the investigation, that the AFP appointee may have committed an offence, the investigator could also arrange for the AFP appointee to be charged with the offence. This might be done even before the investigation of the issue is completed. The AFP appointee might be charged with the offence even if the investigator does not recommend that termination, remedial or training and development action to be taken in relation to the AFP appointee.  (2) To avoid doubt, the Commissioner may take termination action in relation to an AFP employee whether or not a recommendation has been made by an investigator that termination action be taken in relation to the employee. 40TS  Investigative powers  (1) If the investigator is not the Ombudsman, the investigator has, in relation to the investigation of the issue, the powers provided for in Division 5.  (2) To avoid doubt, subsection (1) applies even if the investigator is investigating the issue jointly with the Ombudsman.  (3) If the investigator is the Ombudsman, the Ombudsman has, in relation to the investigation of the issue, the same powers that the Ombudsman has under the Ombudsman Act 1976 in relation to the investigation of a complaint made under that Act. 40TU  Report of investigation  (1) On completion of the investigation of the issue, the investigator must:  (a) prepare a written report of the results of the investigation; and  (b) give the report to:  (i) the head of the unit constituted under section 40RD if the issue was allocated to the investigator under section 40TN; or  (ii) the Commissioner if the issue was allocated to the investigator under section 40TO.  (2) Subsection (1) does not apply if:  (a) the issue is investigated jointly with the Ombudsman; and  (b) the arrangement under which the joint investigation is conducted specifies that the Ombudsman is to lead the investigation.  (3) Without limiting subsection (1), the report prepared under that subsection must include any recommendations that the investigator makes under section 40TR. Note: See also section 40TW. 40TV  Taking action on report   The Commissioner must ensure that:  (a) any recommendations made in the report under section 40TU are fully considered; and  (b) appropriate action is taken in relation to the issue to which the report relates. 40TW  AFP practices issue identified in course of dealing with AFP conduct issue  (a) the investigator is satisfied that the information:   raises an AFP practices issue; and  (b) the investigator prepares a report under section 40TU in relation to the investigation.  (2) The investigator:  (a) must identify the AFP practices issue in the report; and  (b) may include in the report such recommendations as the investigator considers appropriate to address the AFP practices issue. Subdivision E—Dealing with AFP practices issues 40TX  Commissioner to ensure that appropriate action is taken in relation to AFP practices issue  (a) a person gives information under section 40SA that raises an AFP practices issue; or  (b) an AFP practices issue is:  (i) brought, under section 40TK, to the attention of an AFP appointee; or  (ii) identified, under section 40TW, in a report prepared under section 40TU;   as a result of an AFP conduct issue being dealt with under this Part.  (2) The Commissioner must ensure that appropriate action is taken to have the issue dealt with.