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Act No. 21 of 1981 as amended, taking into account amendments up to Act No. 141 of 2005
An Act relating to complaints made in respect of members of the Australian Federal Police, and for related purposes
Registered 16 Dec 2005
Start Date 12 Dec 2005
End Date 30 Dec 2006
Date of repeal 30 Dec 2006
Repealed by Law Enforcement (AFP Professional Standards and Related Measures) Act 2006

Complaints (Australian Federal Police) Act 1981

Act No. 21 of 1981 as amended

This compilation was prepared on 16 December 2005
taking into account amendments up to Act No. 141 of 2005

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

  

  

  


Contents

Part I—Preliminary                                                                                                                1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

3............ Definitions.......................................................................................... 1

4............ Meaning of action taken by AFP appointee........................................ 4

5............ Complaints to which Act applies....................................................... 4

5A......... Application of Act............................................................................. 5

5B......... Application of the Criminal Code...................................................... 5

Part II—Responsibilities of the Australian Federal Police                             6

Division 1—Investigation of complaints by the Internal Investigation Division              6

6............ Certain complaints to be referred to Investigation Division............... 6

6A......... Procedure for minor complaints......................................................... 7

6B......... Conciliation......................................................................................... 8

7............ Powers of Investigation Division [see Note 2]................................... 9

8............ Reference of complaints to other persons........................................ 12

9............ Investigation Division to refrain from investigation in certain circumstances         12

Division 2—Reports of the Investigation Division                                     14

10.......... Reports............................................................................................. 14

11.......... Action consequential on report........................................................ 14

11A....... Discontinuance of proceedings by Commissioner............................ 17

12.......... Notification of charges etc. to Ombudsman..................................... 18

13.......... Notification of charges etc. to complainant...................................... 18

Division 3—Establishment and functions of the Internal Investigation Division             19

14.......... Constitution and functions of Investigation Division...................... 19

15.......... Establishment of Investigation Division........................................... 19

16.......... Transfers to Investigation Division.................................................. 20

17.......... Federal police officers to be transferred to Investigation Division for limited periods           20

Division 4—General                                                                                                    22

18.......... Record of matters............................................................................. 22

19.......... False complaints and providing false information in relation to complaints           22

20.......... Delegation......................................................................................... 23

Part III—Responsibilities of the Ombudsman                                                     24

Division 1—Preliminary                                                                                            24

21.......... Interpretation.................................................................................... 24

21A....... Ombudsman may initiate investigation............................................ 26

22.......... Complaints to Ombudsman concerning action of AFP appointees. 26

23.......... Duties of Ombudsman with respect to complaints.......................... 29

24.......... Ombudsman may determine that complaint should not be investigated 31

24A....... Preliminary inquiries......................................................................... 32

Division 2—Investigations by the Ombudsman                                           34

25.......... Investigations.................................................................................... 34

25A....... Investigations by Commonwealth and State Ombudsmen............... 37

26.......... Special or additional investigations conducted by Ombudsman under this Part     38

27.......... Power to obtain information and documents.................................... 40

27A....... Ombudsman may refer questions to the AAT................................. 42

28.......... Ombudsman may recommend that the Commissioner refer questions to the AAT                43

28A....... Power of Federal Court of Australia to make orders........................ 43

29.......... Power to examine witnesses............................................................. 44

30.......... Power to enter premises................................................................... 44

31.......... Reports by Ombudsman.................................................................. 45

32.......... Reports to Prime Minister............................................................... 47

33.......... Special reports to Parliament............................................................ 47

34.......... Persons affected to be informed of results of investigation by Ombudsman          48

Division 3—Power and duties of Ombudsman in respect of investigations carried out by Investigation Division                                                                                                    49

35.......... Powers of Ombudsman in relation to complaints referred to Investigation Division              49

36.......... Action to be taken by Ombudsman upon receipt of report of an investigation      49

37.......... Ombudsman to inform complainant of results of investigation....... 52

Division 4—General                                                                                                    53

38.......... Annual report and additional reports to Parliament......................... 53

38A....... Progress reports about complaints................................................... 53

39.......... Ombudsman not to be sued.............................................................. 54

40.......... Delegation......................................................................................... 54

41.......... Officers to observe secrecy.............................................................. 54

41A....... Disclosure of information by Ombudsman...................................... 57

43.......... Register to be kept by Ombudsman................................................. 58

44.......... Offences............................................................................................ 58

45.......... Protection from civil actions............................................................. 58

Part IV—Special investigations                                                                                    60

46.......... Circumstances in which special investigation to be conducted........ 60

47.......... Investigations by special investigator............................................... 61

48.......... Report of investigation..................................................................... 62

49.......... Action consequential upon report.................................................... 63

Part V—Inquiries directed by the Minister                                                           65

50.......... Minister may arrange special inquiries............................................. 65

51.......... Minister to cause Ombudsman etc. to be informed of manner of inquiry               68

52.......... Reports of special inquiries.............................................................. 68

Part VA—Undisputed charges                                                                                       69

52A....... Undisputed charges in respect of breaches of discipline.................. 69

52B....... Commissioner may impose penalty................................................. 70

52C....... Ombudsman to be notified of penalty.............................................. 70

52D....... Ombudsman may inform Attorney-General of penalty................... 71

52E........ Appeals............................................................................................ 71

Part VI—The Federal Police Disciplinary Tribunal                                          72

Division 1—Preliminary                                                                                            72

53.......... Interpretation.................................................................................... 72

Division 2—Establishment of Federal Police Disciplinary Tribunal  74

54.......... Establishment and constitution of Federal Police Disciplinary Tribunal                74

55.......... Qualifications of members................................................................ 74

56.......... Appointment of holder of judicial office as member of Disciplinary Tribunal not to affect tenure etc. 74

57.......... Terms and conditions of appointment............................................. 75

58.......... Arrangements for appointment of holder of judicial office of a State or of the Northern Territory etc. 75

59.......... Remuneration of members of Disciplinary Tribunal........................ 76

60.......... Acting appointments........................................................................ 76

61.......... Removal from office—President or Deputy President.................... 78

62.......... Removal from office—other members.............................................. 78

63.......... Resignation....................................................................................... 80

Division 3—Staff of Disciplinary Tribunal                                                        81

64.......... Staff of Disciplinary Tribunal.......................................................... 81

Division 4—Constitution and powers of Disciplinary Tribunal            82

65.......... Arrangement of business.................................................................. 82

66.......... Exercise of powers of Disciplinary Tribunal.................................... 82

66A....... Proceedings for charge where caution not accepted.......................... 82

66B....... Proceedings for charge where admonition not accepted................... 83

67.......... Charges in respect of breaches of discipline..................................... 83

68.......... Appeals to Disciplinary Tribunal from proceedings remitted to Commissioner    85

69.......... Appeal to Disciplinary Tribunal from proceedings before Commissioner              87

70.......... Minister may refer matter to Disciplinary Tribunal for inquiry and report            89

71.......... Powers of Tribunal........................................................................... 89

72.......... Amendment of defect or error in proceeding.................................... 91

73.......... Arrest of witness failing to attend inquiry....................................... 91

74.......... Hearings to be in public except in special circumstances................. 91

75.......... Representation of parties................................................................. 92

76.......... Procedure generally........................................................................... 93

77.......... Protection of members of Disciplinary Tribunal, barristers and witnesses             94

Division 5—Appeals to Federal Court of Australia                                    95

78.......... Interpretation.................................................................................... 95

79.......... Appeal to Federal Court of Australia from decisions of Disciplinary Tribunal      95

80.......... Reference of question of law to the Federal Court of Australia....... 97

81.......... Sending of documents to, and disclosure of documents by, Federal Court of Australia         97

Division 6—General                                                                                                    99

82.......... Failure of witness to attend.............................................................. 99

83.......... Refusal to be sworn or to answer questions..................................... 99

84.......... Disclosure of interests by members of Disciplinary Tribunal....... 100

85.......... Contempt of Disciplinary Tribunal................................................ 101

86.......... Annual Report................................................................................ 101

Part VII—Miscellaneous                                                                                                102

87.......... Secrecy............................................................................................ 102

88.......... AFP appointee to give name and address of place of duty on request 104

88A....... Offence of victimisation................................................................. 104

89.......... Regulations..................................................................................... 104

Notes                                                                                                                                          105


An Act relating to complaints made in respect of members of the Australian Federal Police, and for related purposes

Part IPreliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Complaints (Australian Federal Police) Act 1981.

2  Commencement [see Note 1]

                   This Act shall come into operation on a date to be fixed by Proclamation.

3  Definitions

             (1)  In this Act, unless the contrary intention appears:

AFP appointee means a Deputy Commissioner of the Australian Federal Police, an AFP employee, a special member or a special protective service officer of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979).

breach of discipline means an offence that is a disciplinary offence for the purposes of the prescribed regulations.

Commissioner means the Commissioner of Police referred to in section 6 of the Australian Federal Police Act 1979, and includes a person acting as the Commissioner of Police in accordance with section 18 of that Act or exercising all the powers, and performing all the functions and duties, of the Commissioner of Police in accordance with section 19 of that Act.

Commissioner’s Orders has the same meaning as in the Australian Federal Police Act 1979.

Disciplinary Tribunal means the Federal Police Disciplinary Tribunal established by section 54.

duties include responsibilities.

Federal police officer means:

                     (a)  a member of the Australian Federal Police; or

                     (b)  a special member of the Australian Federal Police.

Investigation Division means the Internal Investigation Division established in pursuance of section 14.

law means a law of the Commonwealth or of a State or Territory.

minor complaint means a complaint:

                     (a)  concerning action taken by an AFP appointee, being action that is or involves discourtesy to a person; or

                     (b)  that arises out of a misunderstanding of the law, of the policy or procedures of the Australian Federal Police, or of any other matter;

but does not include a complaint concerning action that is or involves:

                     (c)  serious ill-treatment of a person by an AFP appointee; or

                     (d)  an assault on a person by an AFP appointee.

officer in charge means the officer in charge of the Investigation Division.

Ombudsman means the Commonwealth Ombudsman.

responsible Minister means the Minister administering the Australian Federal Police Act 1979.

             (2)  For the purposes of this Act, where the Ombudsman has referred a matter to the Commissioner for investigation by the Investigation Division, that matter shall, upon being referred by the Commissioner to the Division, be taken to have been referred to the Division at the request of the Ombudsman.

             (3)  In this Act, unless the contrary intention appears:

                     (a)  a reference to action taken in relation to the employment of AFP appointees generally shall, without limiting the generality of that expression, be construed as including a reference to action taken with respect to the promotion, termination of appointment or discipline of, or the payment of remuneration to, AFP appointees generally;

                     (b)  a reference to action taken in relation to the employment of a particular AFP appointee shall, without limiting the generality of that expression, be construed as including a reference to action taken with respect to the promotion of, or the payment of remuneration to, a particular AFP appointee, but shall not be construed as including a reference to action taken with respect to a breach of discipline committed, or alleged to have been committed, by a particular AFP appointee;

                    (ba)  a reference to cautioning an AFP appointee for a breach of discipline shall be construed as a reference to cautioning an AFP appointee member for a breach of discipline in accordance with regulations made under the Australian Federal Police Act 1979;

                    (bb)  a reference to an AFP appointee being offered or accepting a caution shall be construed as a reference to an AFP appointee member being offered or accepting, as the case may be, a caution in accordance with regulations made under the Australian Federal Police Act 1979;

                    (bc)  a reference to admonishing an AFP appointee for a breach of discipline shall be construed as a reference to admonishing an AFP appointee for a breach of discipline in accordance with regulations made under the Australian Federal Police Act 1979;

                    (bd)  a reference to an AFP appointee being offered or accepting an admonition shall be construed as a reference to an AFP appointee being offered or accepting, as the case may be, an admonition in accordance with regulations made under the Australian Federal Police Act 1979;

                     (c)  a reference to the charging of an AFP appointee in respect of a breach of discipline is a reference to the institution of proceedings against the appointee in respect of the breach in accordance with the prescribed regulations;

                     (d)  a reference to the taking of action shall be construed as including a reference to:

                              (i)  the making of a decision or recommendation;

                             (ii)  the formulation of a proposal; and

                            (iii)  failure or refusal to take any action, to make a decision or recommendation or to formulate a proposal.

             (4)  In this Act, references to the prescribed regulations shall be construed as references to such regulations made under the Australian Federal Police Act 1979 as are declared by the regulations made under this Act to be the prescribed regulations.

4  Meaning of action taken by AFP appointee

                   In this Act, unless the contrary intention appears, a reference to action taken by an AFP appointee is a reference to action that the appointee takes or purports to take:

                     (a)  because of his or her being an AFP appointee; or

                     (b)  in the exercise of powers, or the performance of functions, given to him or her as an AFP appointee by this Act or by another law.

5  Complaints to which Act applies

             (1)  Subject to this section, if a person complains to an AFP appointee about action taken by the appointee or another AFP appointee, or complains to the Ombudsman about such action, this Act applies in relation to the complaint:

                     (a)  whether the complaint is made orally or in writing; and

                     (b)  whether or not the AFP appointee whose action is complained of is identified in the complaint; and

                     (c)  if the complaint is made to an AFP appointee—whether or not the identity of the complainant is known by, or disclosed to, the appointee.

             (3)  This Act does not apply to or in relation to a complaint concerning action taken in relation to the employment of AFP appointees generally or to the employment of a particular AFP appointee.

             (4)  The provisions of this Act, insofar as they confer rights on a complainant with respect to action taken by an AFP appointee:

                     (a)  are in addition to the provisions of any other law;

                     (b)  except as provided in subsection 22(5), do not affect the operation of any other law; and

                     (c)  without limiting the generality of the foregoing, do not prevent or affect the taking of legal proceedings in respect of that action under some other law or affect the operation of any other law in respect of legal proceedings so taken.

5A  Application of Act

                   This Act applies both within and outside Australia and extends to every external Territory.

5B  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.


 

Part IIResponsibilities of the Australian Federal Police

Division 1Investigation of complaints by the Internal Investigation Division

6  Certain complaints to be referred to Investigation Division

             (1)  If:

                     (a)  a person complains to an AFP appointee about action taken by the appointee or by another AFP appointee; and

                     (b)  the appointee to whom the complaint is made is an authorised appointee;

the authorised appointee must decide whether the complaint is a minor complaint and:

                     (c)  if he or she decides that the complaint is a minor complaint—refer it to an AFP appointee designated by the Commissioner for the purposes of section 6A; or

                     (d)  otherwise—refer the complaint, as soon as practicable, to the Investigation Division for investigation.

             (2)  If:

                     (a)  a person complains to an AFP appointee about action taken by the appointee or by another AFP appointee; and

                     (b)  the appointee to whom the complaint is made is not an authorised appointee;

the appointee to whom the complaint is made must refer the complaint to an authorised appointee.

             (3)  Where a complaint is referred to the Investigation Division, the Ombudsman shall be notified of the complaint and furnished with particulars of the complaint.

             (4)  This section does not apply to a complaint made by a person who:

                     (a)  is known by the AFP appointee to whom the complaint is made to be an AFP appointee; or

                     (b)  discloses to the AFP appointee to whom the complaint is made that he or she is an AFP appointee.

             (5)  In this section:

authorised appointee means an AFP appointee authorised by the Commissioner’s Orders to make determinations under subsection (1).

6A  Procedure for minor complaints

             (1)  An AFP appointee designated by the Commissioner for the purposes of this section shall, as soon as practicable after receiving a minor complaint:

                     (a)  discuss the complaint with the complainant; and

                     (b)  inform the complainant that the complaint:

                              (i)  is being dealt with as a minor complaint; and

                             (ii)  will, if the complainant at any time requests, be referred to the Investigation Division for investigation.

             (2)  Subject to subsection (3), the AFP appointee may, in the discussion or otherwise, attempt to resolve the complaint by conciliation.

             (3)  If:

                     (a)  the AFP appointee has not discussed the complaint with the complainant within 24 hours after receiving the complaint;

                     (b)  the AFP appointee is satisfied, after discussion with the complainant, that the complaint is not likely to be resolved by conciliation; or

                     (c)  the complainant so requests;

the AFP appointee shall refer the complaint, by the most expeditious means available to the AFP appointee, to the Investigation Division for investigation and, if paragraph (a) applies, shall accompany the complaint with a statement of the reasons why the complaint has not been discussed with the complainant.

             (4)  Where the complaint is resolved by conciliation:

                     (a)  the AFP appointee shall:

                              (i)  inform the officer in charge; and

                             (ii)  provide the officer with any information about the complaint, and about the action taken by the AFP appointee, that the officer requests;

                     (b)  the officer in charge shall:

                              (i)  notify the Ombudsman of the complaint and of the resolution of the complaint; and

                             (ii)  furnish the Ombudsman with particulars of both; and

                     (c)  the officer in charge shall take no action, or further action, by way of investigating or further investigating the complaint unless the Ombudsman requests the Commissioner, in writing, to cause it to be investigated or further investigated by the Investigation Division.

6B  Conciliation

             (1)  Where the Commissioner or officer in charge considers that the whole or part of a complaint (whether made under section 6 or 22, but not including a complaint that is being dealt with under subsection 6A(2)) may properly be dealt with by attempting to resolve the complaint by conciliation, the Commissioner or officer in charge may, after notifying the Ombudsman, direct an authorised member to attempt to resolve the complaint by conciliation.

             (2)  Where the Commissioner or officer in charge:

                     (a)  is satisfied that the complaint has been resolved by conciliation; or

                     (b)  is satisfied, after discussion with the complainant, that the complaint is not likely to be resolved by conciliation;

the Commissioner shall inform the Ombudsman accordingly and, where paragraph (a) applies, furnish particulars of the resolution of the complaint to the Ombudsman.

             (3)  Except where the officer in charge is satisfied as provided in paragraph (2)(b), the officer in charge may, in his or her discretion, defer the investigation or further investigation of the whole or part of the complaint pending the outcome of an attempt under this section to resolve the complaint by conciliation.

             (4)  Where the officer in charge is satisfied that the whole or part of the complaint has been resolved by conciliation, the officer in charge shall take no action, or further action, by way of investigating or further investigating the whole or that part of the complaint unless the Ombudsman requests the Commissioner, in writing, to cause it to be investigated or further investigated by the Investigation Division.

             (5)  Evidence of a statement made or an answer given by an AFP appointee in the course of an attempt under this section to resolve a complaint by conciliation is not admissible against the appointee in any proceedings (including proceedings in relation to a breach of discipline).

             (6)  This section shall not be taken to prevent the Ombudsman from investigating under Part III a complaint made under section 6 that is, in substance, a complaint concerning the practices and procedures of the Australian Federal Police.

             (7)  For the purposes of subsection (1), an authorised member is an AFP appointee (other than the appointee against whom the complaint is made) who is a member of the Australian Federal Police and who is authorised in writing by the Commissioner for the purposes of this section.

7  Powers of Investigation Division [see Note 2]

             (1)  Subject to this Act, each complaint that is referred to the Investigation Division under section 6, each complaint that is referred to the Commissioner under section 23, and each matter that is referred to that Division under subsection 25(5), shall be investigated by that Division.

             (2)  A complaint that has been investigated by the Investigation Division shall, in accordance with subsection 11(7) or upon request being made by the Ombudsman under subparagraph 36(1)(a)(i), be investigated further by that Division.

             (3)  The investigation or further investigation of a complaint, or the investigation of a matter referred to in subsection (1), shall be conducted, subject to this part, in such manner as the officer in charge thinks fit.

             (4)  Subject to this Part, a member of the Investigation Division may, for the purposes of the investigation, obtain information from such persons, and make such inquiries, as he or she thinks fit.

             (5)  A member of the Investigation Division may, for the purposes of the investigation of a complaint or matter, direct an AFP appointee to furnish information, produce a document or other record, or answer a question, that is relevant to the complaint or matter, as the case may be.

          (5A)  A direction under subsection (5) has no effect unless the person giving the direction:

                     (a)  states in the direction that the AFP appointee concerned is being expressly directed under subsection (5) of this section;

                     (b)  specifies in the direction the substance of the complaint or matter being investigated;

                     (c)  if it is practicable to do so—gives the direction in writing; and

                     (d)  if the direction is given in writing—causes a copy of the direction to be furnished to the member concerned.

          (5B)  In any proceedings for a contravention of subsection (8), the onus of proving that the person who gave a direction under subsection (5) complied with subsection (5A) lies on that person.

             (6)  Where an AFP appointee is directed under subsection (5) to furnish information, produce a document or record or answer a question, the appointee is not excused from complying with the direction on the ground that:

                     (a)  the furnishing of the information, the production of the document or record or the answering of the question:

                              (i)  would be contrary to the public interest; or

                             (ii)  might make him or her liable to a penalty; or

                     (b)  the information, the production of the document or record or the answer to the question might tend to incriminate him or her;

or on any other ground, but the information, the production of the document or record or the answer to the question is not admissible in evidence against him or her in any civil or criminal proceedings other than proceedings for an offence against subsection (8) or for or in relation to a breach of discipline.

             (7)  Nothing in subsection (6) shall be taken to affect the admissibility in evidence, in any civil or criminal proceedings, of:

                     (a)  any information furnished by an AFP appointee to a member of the Investigation Division;

                     (b)  the production of a document or other record by a member of the Australian Federal Police to a member of the Investigation Division; or

                     (c)  an answer given by a member of the Australian Federal Police to a question put to him or her by a member of the Investigation Division;

where the appointee has not been expressly directed, under subsection (5), to furnish the information, produce the document or record or answer the question.

             (8)  An AFP appointee shall not:

                     (a)  refuse or fail to furnish information, produce a document or other record or answer a question when so required in pursuance of this section; or

                     (b)  furnish information or make a statement to a member of the Investigation Division knowing that it is false or misleading in a material particular.

Penalty:  Imprisonment for 6 months.

          (8A)  Paragraph (8)(a) does not apply if the appointee has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (8A) (see subsection 13.3(3) of the Criminal Code).

             (9)  For all purposes of the Australian Federal Police Act 1979, and the regulations in force under that Act, a direction given by a member of the Investigation Division under subsection (5) has effect as if it had been given by the Commissioner.

           (10)  Subsections (3) and (4) do not authorize a Federal police officer to contravene or fail to comply with a law that would, if those subsections had not been enacted, apply in relation to the investigation of a complaint or other matter referred to the Investigation Division, but nothing in this subsection affects the operation of any other provision of this section.

           (11)  An AFP appointee is not liable to any penalty (other than a penalty under this Act) merely because the appointee:

                     (a)  gives information; or

                     (b)  produces a document or other record; or

                     (c)  answers a question;

when directed to do so by a member of the Investigation Division under this section.

8  Reference of complaints to other persons

             (1)  The officer in charge may:

                     (a)  if he or she thinks that the whole or a part of the investigation should be carried out by a person having special qualifications and the Commissioner so approves—authorise a person who has those qualifications to make the whole or the part of the investigation for the Division; or

                     (b)  if he or she thinks that a complaint is not such as to require investigation by a member of the Division and the Commissioner so approves—authorise a Federal police officer to make the investigation for the Division.

             (2)  If the officer in charge gives such an authority, each reference in section 7 to a member of the Investigation Division is to be read, in relation to the whole or the part of the investigation, as including a reference to the authorised person.

9  Investigation Division to refrain from investigation in certain circumstances

             (1)  Where a complaint is required to be investigated as provided by section 46, the Commissioner shall ensure that no action, or no further action, is taken by the Investigation Division in connection with the investigation of that complaint.

             (2)  Where the Ombudsman informs the Commissioner under section 25 that he or she intends to investigate a complaint, the Commissioner may, in his or her discretion, direct the officer in charge:

                     (a)  if the Investigation Division has not commenced to investigate the complaint—to cause the Division to refrain from investigating the complaint; or

                     (b)  if the Investigation Division has commenced to investigate the complaint—to cause the Investigation Division to refrain from further investigating the complaint and to furnish to the Ombudsman a report, in writing, setting out any information acquired by the Division as a result of the investigation already carried out.

             (3)  Where, after:

                     (a)  particulars of a complaint have been furnished to the Ombudsman in accordance with section 6; or

                     (b)  the Ombudsman has referred to the Commissioner a complaint that was made to the Ombudsman under this Act or a matter relating to such a complaint;

the Ombudsman informs the Commissioner under section 24 that the Ombudsman has determined that the complaint should not be investigated, or investigated further, as the case requires, the Commissioner may, in his or her discretion, direct the officer in charge to cause the Investigation Division to refrain from investigating, or further investigating, that complaint or matter.


 

Division 2Reports of the Investigation Division

10  Reports

             (1)  When the Investigation Division has completed its investigation of a complaint or other matter referred to it under this Act, the officer in charge shall cause a report, in writing, of the results of the investigation to be prepared, and a copy of that report shall, as soon as practicable after it has been prepared, be furnished to the Ombudsman, together with any comments that the Commissioner wishes to make in relation to the report.

             (2)  When the Investigation Division has completed its investigation of a complaint that was referred to it under section 6 or referred to the Commissioner under section 23 and following consultation with the Ombudsman about the results of the investigation, the Commissioner shall cause to be furnished to the AFP appointee concerned, in such manner and at such times as he or she thinks fit, particulars of the results of the investigation carried out by the Division together with any comments he or she wishes to make concerning the investigation.

             (3)  In this section, investigation, in relation to a complaint, includes a further investigation of that complaint by the Investigation Division under subsection 11(7) or upon request made by the Ombudsman under subparagraph 36(1)(a)(i).

11  Action consequential on report

             (1)  As soon as practicable after the Commissioner receives a report of the results of the investigation, or further investigation, of a complaint by the Investigation Division or a report of the results of a special or additional investigation of a complaint by the Ombudsman, the Commissioner shall consider the report, together with:

                     (a)  in the case of a report of the results of the investigation, or further investigation, of a complaint by the Investigation Division—any notification or recommendation under section 36 that he or she may have received with respect to the report; or

                     (b)  in the case of a report of the results of a special or additional investigation of a complaint by the Ombudsman—any recommendation under subsection 26(3) or (3A) that he or she may have received with respect to the report;

and, without limiting the generality of the foregoing, shall consider whether, in his or her opinion, any action should be taken by way of charging, or offering a caution or an admonition to, one or more AFP appointees.

             (2)  Where the Commissioner receives a notification or recommendation under section 36 with respect to a report of the results of the investigation, or further investigation, of a complaint by the Investigation Division after he or she has complied with subsection (1) in respect of the report, he or she shall consider the notification or recommendation in conjunction with a further consideration of the report and, without limiting the generality of the foregoing, shall consider whether, in his or her opinion, any action, or any further action, should be taken by way of charging, or offering a caution or an admonition to, one or more AFP appointees.

             (3)  Where, upon complying with subsection (1) or (2) in respect of a report of the results of the investigation, or further investigation, of a complaint by the Investigation Division or upon complying with subsection (1) in respect of a report of the results of a special or additional investigation of a complaint by the Ombudsman, the Commissioner proposes:

                     (a)  that one or more AFP appointees be charged;

                     (b)  that one or more AFP appointees be offered a caution;

                     (c)  that one or more AFP appointees be offered an admonition; or

                     (d)  that no action be taken by way of charging, or offering a caution or admonition to, one or more AFP appointees;

the Commissioner shall confer with the Ombudsman concerning his or her proposal and may, from time to time in the course of so conferring, modify his or her proposal having regard to relevant matters, including matters put to him or her by the Ombudsman.

             (4)  Subject to subsection (5), when the Commissioner has conferred with the Ombudsman in respect of a report, the Commissioner shall give effect to the proposal put by him or her to the Ombudsman.

             (5)  Where the result of the Commissioner’s conferring with the Ombudsman in respect of a report was that the Ombudsman expressly disagreed, either in whole or in part, with the proposal that was put to him or her, the Commissioner shall refer the matter on which they disagreed to the Attorney-General.

             (6)  A reference in subsection (4) or (5) to a proposal put by the Commissioner to the Ombudsman shall, in a case where the proposal first put by the Commissioner to the Ombudsman in the course of conferring with the Ombudsman was later modified, be construed as a reference to the proposal so first put as modified or last modified in the course of so conferring.

             (7)  Where the Commissioner refers a matter to the Attorney-General under subsection (5), the Attorney-General shall, after considering the report to which the matter relates and the results of any inquiries he or she makes or causes to be made:

                     (a)  direct what action (if any) should be taken by way of charging, or offering a caution or admonition to, the AFP appointee, or any of the AFP appointees, as the case may be, to whom the matter relates; or

                     (b)  direct that no action should be taken at that time by way of charging, or offering a caution or admonition to, the AFP appointee, or any of the AFP appointees, as the case may be, to whom the matter relates pending:

                              (i)  unless subparagraph (ii) applies—further investigation by the Investigation Division under Part II or by the Ombudsman under Part III, as the Attorney-General determines; or

                             (ii)  if the matter referred to the Attorney-General relates to a complaint that was the subject of a special or additional investigation by the Ombudsman—further investigation by the Ombudsman under Part III.

             (8)  Nothing in this section shall be taken to limit the powers conferred on the Ombudsman by section 36 in relation to a complaint.

             (9)  In this section:

                     (a)  a reference to the additional investigation of a complaint by the Ombudsman shall be construed as a reference to an investigation of the complaint conducted by the Ombudsman in accordance with a notification made under subparagraph 36(1)(a)(ii) or 36(2)(a)(i);

                     (b)  a reference to the charging of an AFP appointee shall be construed as a reference to the charging of an AFP appointee with an offence or breach of discipline;

                    (ba)  a reference to the offering of a caution to an AFP appointee shall be construed as a reference to the offering of a caution to an AFP appointee for a breach of discipline;

                    (bb)  a reference to the offering of an admonition to an AFP appointee shall be construed as a reference to the offering of an admonition to an AFP appointee for a breach of discipline;

                     (c)  a reference to the modification of a proposal shall be construed as including a reference to the substitution of a proposal for another proposal;

                     (d)  a reference to a notification under section 36 shall be construed as a reference to a notification under paragraph 36(1)(b) or (2)(b);

                     (e)  a reference to a recommendation under section 36 shall be construed as a reference to a recommendation under paragraph 36(1)(c) or (2)(c); and

                      (f)  a reference to the special investigation of a complaint by the Ombudsman shall be construed as a reference to an investigation of the complaint by the Ombudsman in pursuance of section 46.

11A  Discontinuance of proceedings by Commissioner

             (1)  Subject to subsection (2), where proceedings to which subsection 67(1) or (2) applies have been instituted by the Commissioner, the Commissioner may, at any time before the proceedings have been determined, with the leave of the Disciplinary Tribunal, discontinue the proceedings in whole or in part.

             (2)  The Commissioner shall not discontinue proceedings under subsection (1):

                     (a)  in the case of proceedings instituted pursuant to a direction by the Attorney-General under paragraph 11(7)(a)—without the consent of the Attorney-General;

                     (b)  in the case of proceedings instituted pursuant to action by the Minister under paragraph 52(2)(b)—without the consent of the Minister; or

                     (c)  in the case of proceedings instituted pursuant to a proposal put by the Commissioner as mentioned in subsection 11(4)—without the consent of the Ombudsman.

12  Notification of charges etc. to Ombudsman

             (1)  Where, under section 11, an AFP appointee is:

                     (a)  charged with an offence or breach of discipline; or

                     (b)  offered a caution or admonition for a breach of discipline;

the Commissioner shall notify the Ombudsman, in writing, that the appointee has been so charged or has been offered a caution or admonition, as the case requires.

             (2)  Where:

                     (a)  an AFP appointee is, under section 11, offered a caution or admonition for a breach of discipline; and

                     (b)  the appointee refuses to accept the caution or admonition;

the Commissioner shall notify the Ombudsman, in writing, that:

                     (c)  the appointee has refused the caution or admonition; and

                     (d)  the appointee has been charged with a breach of discipline.

13  Notification of charges etc. to complainant

                   Where, under section 11, an AFP appointee is charged with an offence or breach of discipline, or accepts a caution or admonition for a breach of discipline, the Commissioner shall, unless the identity of the complainant is unknown, as soon as practicable notify the complainant, in writing, that the appointee has been so charged, or has accepted the caution or admonition, and give to the complainant any comments the Commissioner wishes to make in relation to the charge, or the acceptance of the caution or admonition, as the case requires.


 

Division 3Establishment and functions of the Internal Investigation Division

14  Constitution and functions of Investigation Division

             (1)  The Commissioner shall constitute, within the Australian Federal Police, a Division to be known as the Internal Investigation Division.

             (2)  The functions of the Investigation Division are:

                     (a)  to investigate complaints concerning action taken by AFP appointees that are referred to it under section 6 or referred to the Commissioner under section 23; and

                     (b)  to investigate matters concerning action taken by AFP appointees that are referred to it by the Commissioner, including matters that are so referred to it at the request of the Ombudsman.

             (3)  In addition to the functions of the Investigation Division under subsection (2), the Investigation Division has such other functions as are conferred on it by or under any other Act.

15  Establishment of Investigation Division

             (1)  The establishment of the Investigation Division shall be such as is from time to time determined by the Commissioner.

             (2)  In determining the establishment of the Investigation Division, and in varying that establishment from time to time, the Commissioner shall ensure, so far as it is practicable for the Commissioner to do so, that the staff of the Investigation Division is adequate to enable the Division to perform its functions effectively.

             (3)  The officer in charge is responsible directly to the Commissioner, or, if the Commissioner so directs, to a specified Deputy Commissioner, for the performance by the Investigation Division of its functions.

16  Transfers to Investigation Division

             (1)  The Commissioner shall, in transferring Federal police officers to the Investigation Division, and in transferring Federal police officers from that Division to another part of the Australian Federal Police, ensure that there are, at all times, not less than 2 Federal police officers serving in the Division and that, as far as practicable, the Federal police officers serving in the Division are adequate for the effective performance of the functions of the Division.

             (2)  The Commissioner shall, in selecting a Federal police officer for transfer to the Investigation Division take into account, in addition to any other matters that he or she considers to be relevant:

                     (a)  the nature of the functions of the Division; and

                     (b)  the need to ensure that, at all times, there are included among the Federal police officers serving in the Division a Federal police officer with experience in criminal investigations and a Federal police officer with experience in general police duties.

             (3)  Subject to subsection (4), the Commissioner may direct a Federal police officer serving in the Investigation Division to perform duties that are not related to the Division’s functions so long as those duties do not unduly interfere with the performance by the Division of its functions.

             (4)  Subject to subsection (5), the Commissioner must not direct a Federal police officer serving in the Investigation Division to investigate an offence alleged to have been committed by a person other than an AFP appointee.

             (5)  A Federal police officer may investigate an offence alleged to have been committed by a person other than an AFP appointee to the extent that such an investigation is necessary to investigate an offence alleged to have been committed by an AFP appointee.

17  Federal police officers to be transferred to Investigation Division for limited periods

             (1)  Where the Commissioner transfers a Federal police officer to the Investigation Division, the Commissioner shall, by instrument under his or her hand, determine the period, being a period not exceeding 3 years, during which the Federal police officer is to serve in the Division.

             (2)  Where a Commissioner is of the opinion that there are special reasons for doing so, he or she may vary an instrument under subsection (1) (including an instrument that has been previously varied under this subsection) by substituting for the period specified in the instrument a shorter or longer period (including a longer period in excess of 3 years).

             (3)  As soon as practicable after a Federal police officer of the Investigation Division has performed duty in the Investigation Division for the period specified in the instrument under subsection (1) that relates to the officer, the Commissioner shall cause him or her to be transferred from that Division.


 

Division 4General

18  Record of matters

             (1)  The officer in charge shall maintain a register containing the prescribed particulars with respect to each complaint or other matter that is referred to the Investigation Division for investigation.

             (2)  The Commissioner shall include in the annual report prepared by him or her in accordance with section 67 of the Australian Federal Police Act 1979 in respect of a year the prescribed particulars:

                     (a)  with respect to complaints and other matters referred during that year to the Investigation Division for investigation;

                     (b)  of the action taken by the Investigation Division during that year in respect of complaints and other matters referred to the Investigation Division for investigation; and

                     (c)  of the action taken by him or her during that year in respect of:

                              (i)  reports received by him or her of the results of investigations by the Investigation Division;

                             (ii)  reports received by him or her from the Ombudsman in respect of investigations by the Ombudsman; and

                            (iii)  proceedings remitted to him or her by the Disciplinary Tribunal.

19  False complaints and providing false information in relation to complaints

             (1)  A person must not make a complaint to which this Act applies to an AFP appointee about action taken by an AFP appointee if the person knows that the complaint is false in a material particular.

Penalty:  20 penalty units.

             (2)  A person must not, in relation to a complaint to which this Act applies, provide information to an AFP appointee that the person knows to be false in a material particular.

Penalty:  20 penalty units.

             (3)  Proceedings for an offence against this section must not be brought except with the consent in writing of:

                     (a)  the Ombudsman or an authorised person; or

                     (b)  if the Ombudsman or an authorised person refuses to consent—the Attorney-General.

             (4)  In this section:

authorised person means a person who has been authorised in writing by the Ombudsman to give consents under subsection (3).

20  Delegation

             (1)  The Commissioner may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him or her, delegate to an AFP appointee any of his or her powers under this Act, other than this power of delegation.

             (2)  A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Commissioner.

             (3)  A delegate shall, upon request by a person affected by the exercise of any powers delegated to him or her, produce the instrument of delegation, or a copy of that instrument, for inspection.

             (4)  A delegation under this section does not prevent the exercise of a power by the Commissioner.


 

Part IIIResponsibilities of the Ombudsman

Division 1Preliminary

21  Interpretation

             (1)  In this Part, unless the contrary intention appears:

authorized person means:

                     (a)  a person appointed by the Ombudsman to be an authorized person for the purposes of this Part; or

                     (b)  a person included in a class of persons determined by the Ombudsman, by writing under his or her hand, to be a class of authorized persons for the purposes of this Part.

Deputy Ombudsman means a Deputy Commonwealth Ombudsman.

enactment means:

                     (a)  an Act;

                     (b)  an Ordinance of the Australian Capital Territory;

                    (ba)  an enactment of Norfolk Island, other than an enactment relating to the powers, privileges or immunities of the Legislative Assembly of Norfolk Island;

                     (c)  an Ordinance of the Territory of Christmas Island or of the Territory of Cocos (Keeling) Islands;

                     (d)  an instrument made under an Act or under an Ordinance referred to in paragraph (b) or (c); or

                     (e)  a law (not being an Act, an Ordinance referred to in paragraph (c) or an instrument referred to in paragraph (d)) in force in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands;

but does not include the Norfolk Island Act 1979, the Northern Territory (Self-Government) Act 1978 or an enactment of the Northern Territory.

enactment of Norfolk Island means:

                     (a)  a law or Ordinance referred to in paragraph (a), (b) or (c) of the definition of enactment in subsection 4(1) of the Norfolk Island Act 1979; or

                     (b)  an instrument (including rules, regulations or by-laws) made under such a law or Ordinance.

enactment of the Northern Territory means:

                     (a)  a law or Ordinance referred to in paragraph (a) or (b) of the definition of enactment in subsection 4(1) of the Northern Territory (Self-Government) Act 1978; or

                     (b)  an instrument (including rules, regulations or by-laws) made under such a law or Ordinance.

Ordinance, in relation to the Australian Capital Territory, includes a law of a State that applies, or the provisions of a law of a State that apply, in the Territory by virtue of an enactment.

             (2)  In this Part, unless the contrary intention appears:

                     (a)  references to a Department;

                     (b)  references to an officer, or a principal officer, in relation to a Department or a prescribed authority;

                     (c)  references to the responsible Minister, in relation to a matter or to action taken in relation to a matter; and

                     (d)  subject to subsection (3), references to a prescribed authority;

have the same respective meanings as they have in the Ombudsman Act 1976.

             (3)  In this Part, a reference to a prescribed authority shall be construed as not including a reference to the Australian Federal Police.

             (4)  In this Part, unless the contrary intention appears, a reference to a complaint concerning action taken by an AFP appointee shall be construed as including a reference to a complaint concerning action taken by the Australian Federal Police.

             (5)  In this Part, a reference to a complaint that is, in substance, about the practices and procedures of the Australian Federal Police shall be construed as a reference to a complaint that is, in substance, about the rules, orders and instructions (including the Commissioner’s Orders) in accordance with which the AFP appointee to whom the complaint relates is required to perform his or her duties or about the practices and procedures ordinarily followed by AFP appointees in the performance of their duties.

             (6)  In this Part, unless the contrary intention appears, a reference to the Ombudsman of a State shall be read as a reference to a person performing, under a law of the State, functions similar to the functions performed by the Ombudsman under this Part.

             (7)  For the purposes of a provision of this Part (other than this subsection) in which a reference to the Ombudsman of a State occurs:

                     (a)  a reference to a State, in relation to the Ombudsman of a State, shall be read as including a reference to the Northern Territory; and

                     (b)  a reference to a law of a State, in relation to the Ombudsman of a State, shall be read as including a reference to an enactment of the Northern Territory.

21A  Ombudsman may initiate investigation

             (1)  The Ombudsman may, on his or her own initiative:

                     (a)  undertake an investigation of the actions of an AFP appointee; or

                     (b)  refer any matter relating to the actions of an AFP appointee (other than a procedural matter) to the Investigation Division for investigation.

             (2)  In this section:

actions of an AFP appointee includes actions taken by the appointee before the commencement of this section.

procedural matter means a matter that, in substance, relates to the practices and procedures of the Australian Federal Police.

22  Complaints to Ombudsman concerning action of AFP appointees

             (1)  A complaint may be made to the Ombudsman under this Part by any person (including an AFP appointee) concerning action taken, whether before or after the commencement of this Act, by an AFP appointee.

             (2)  Subject to subsection (3), a complaint under subsection (1) may be made to the Ombudsman orally or in writing.

             (3)  Where a complaint is made orally to the Ombudsman, the Ombudsman may reduce the complaint to writing or at any time require the complainant to reduce the complaint to writing and, where the Ombudsman makes such a requirement of a complainant, the Ombudsman may decline to investigate the complaint, or to investigate the complaint further, or to refer the complaint to the Commissioner, until the complainant reduces the complaint to writing.

             (4)  A person who is detained in custody is entitled:

                     (a)  upon making a request to the person in whose custody he or she is detained or to any other person performing duties in connection with his or her detention:

                              (i)  to be provided with facilities for preparing a complaint in writing under this Part, for furnishing in writing to the Ombudsman, after the complaint has been made, any other relevant information and for enclosing the complaint or the other information (if any) in a sealed envelope; and

                             (ii)  to have sent to the Ombudsman, without undue delay, a sealed envelope delivered by him or her to any such person and addressed to the Ombudsman; and

                     (b)  to have delivered to him or her, without undue delay, any sealed envelope, addressed to him or her and sent by the Ombudsman, that comes into the possession or under the control of the person in whose custody he or she is detained or of any other person performing duties in connection with his or her detention.

          (4A)  Where a sealed envelope addressed to the Ombudsman is delivered by a person detained in custody to a person referred to in subsection (4) for sending to the Ombudsman, or a sealed envelope addressed to a person so detained and sent by the Ombudsman comes into the possession or under the control of a person referred to in that subsection, neither the person in whose custody the first-mentioned person is detained nor any other person performing duties in connection with his or her detention is entitled to open the envelope or to inspect any document enclosed in the envelope.

          (4B)  For the purposes of subsections (4) and (4A), the Ombudsman may make arrangements with the appropriate authority of a State or Territory for the identification and delivery of sealed envelopes sent by the Ombudsman to persons detained in custody in that State or Territory.

             (5)  Notwithstanding anything contained in the Ombudsman Act 1976, the provisions of that Act (other than section 19 of the Act) do not apply to or in relation to action that is, within the meaning of that Act, action taken by the Australian Federal Police or to action that is, within the meaning of this Act, action taken by an AFP appointee, whether that action was taken before, or is taken after, the commencement of this Act, if that action is the subject of a complaint made, or to be treated, by virtue of subsection (6), as having been made, to the Ombudsman under subsection (1).

             (6)  For the purpose of subsection (5), if a complaint is made to the Ombudsman under the Ombudsman Act 1976, after the commencement of this Act, with respect to action that is, within the meaning of the Ombudsman Act 1976, action taken by the Australian Federal Police or with respect to action that is, within the meaning of this Act, taken by an AFP appointee, the Ombudsman shall treat the complaint as if it were a complaint made to him or her under subsection (1).

             (7)  Notwithstanding subsection (5):

                     (a)  where a complaint made to the Ombudsman under subsection (1) is, as to part, a complaint with respect to action taken by an AFP appointee and, as to the remainder, a complaint with respect to action that is, within the meaning of the Ombudsman Act 1976, action taken by a Department or a prescribed authority other than the Australian Federal Police; or

                     (b)  where a complaint made to the Ombudsman under the Ombudsman Act 1976, after the commencement of this Act is, as to part, a complaint with respect to action that is, within the meaning of that Act, action taken by the Australian Federal Police or with respect to action that is, within the meaning of this Act, action taken by an AFP appointee, or both, and, as to the remainder, a complaint with respect to action that is, within the meaning of the Ombudsman Act 1976, action taken by a Department or a prescribed authority other than the Australian Federal Police;

the Ombudsman shall treat the first-mentioned part of the complaint as if it were a complaint made to him or her under subsection (1) and the remainder of the complaint as if it were a separate complaint made to him or her under the Ombudsman Act 1976.

             (8)  For the purposes of the application of sections 56 and 57 of the Freedom of Information Act 1982 in a case where a complaint is made to the Ombudsman concerning action taken by an AFP appointee or by the Australian Federal Police in connection with a request made to the Australian Federal Police under that Act:

                     (a)  references in those sections to the Ombudsman Act 1976 shall be read as references to this Act;

                     (b)  references in those sections to section 12 of the Ombudsman Act 1976 shall be read as references to section 34 of this Act;

                     (c)  the reference in subsection 57(2) of the Freedom of Information Act 1982 to subsection 6(2) of the Ombudsman Act 1976 shall be read as a reference to subsection 24(2) of this Act; and

                     (d)  subsection 57(7) of the Freedom of Information Act 1982 shall be disregarded.

23  Duties of Ombudsman with respect to complaints

             (1)  Subject to this Part, where a complaint is made to the Ombudsman under this Part about action taken by an AFP appointee:

                     (a)  if the complaint is, in substance, about the practices and procedures of the Australian Federal Police—the Ombudsman shall investigate the complaint under this Part; or

                     (b)  in any other case—the Ombudsman shall refer the complaint to the Commissioner.

             (2)  Subject to this Part, where particulars of a complaint are furnished to the Ombudsman in accordance with section 6, and the complaint is, in substance, about the practices and procedures of the Australian Federal Police, the Ombudsman may investigate the complaint under this Part.

             (3)  Subject to this Part, where the Ombudsman furnishes a notification to the Commissioner under subparagraph 36(1)(a)(ii) or (2)(a)(i) in respect of a complaint after it has been investigated by the Investigation Division, the Ombudsman shall investigate the complaint under this Part.

             (4)  If the Ombudsman has power under this Act and under paragraph 5(1)(b) of the Ombudsman Act 1976 to investigate any action of an AFP appointee, the Ombudsman cannot investigate the action under the Ombudsman Act 1976.

             (5)  Where the Ombudsman is of the opinion that a complaint made to him or her under this Part, or to an AFP appointee under Part II, is, in part, a complaint that is, in substance, about the practices and procedures of the Australian Federal Police and in part a complaint that is not, in substance, about the practices and procedures of the Australian Federal Police:

                     (a)  if the Ombudsman is also of the opinion that those parts of the complaint cannot conveniently be dealt with separately—the Ombudsman may inform the Commissioner, under subsection 25(1), that he or she proposes to investigate the complaint as if the whole of the complaint was, in substance, about the practices and procedures of the Australian Federal Police and, where he or she does so, this Act applies as if the complaint were such a complaint; and

                     (b)  in any other case—the Ombudsman may inform the Commissioner that he or she proposes to investigate the first-mentioned part of the complaint under this Part and, where he or she does so, this Act applies as if the first-mentioned part and the second-mentioned part of the complaint were separate complaints.

             (6)  Nothing in this section shall be taken to limit the duty of the Ombudsman to investigate a complaint under this part in pursuance of subsection 11(7) or section 46.

24  Ombudsman may determine that complaint should not be investigated

             (1)  Where a complaint has been made to the Ombudsman under this Part or particulars of a complaint have been furnished to the Ombudsman in accordance with section 6, the Ombudsman may, in his or her discretion, determine that the complaint should not be investigated, or investigated further, as the case requires, under this Act:

                     (a)  if he or she is satisfied that the complainant became aware of the action complained of more than 12 months before the complaint was made;

                     (b)  if, in his or her opinion:

                              (i)  the complaint is frivolous, trivial or vexatious or was not made in good faith; or

                             (ii)  the complainant does not have a sufficient interest in the subject matter of the complaint;

                     (c)  if a person has been charged with an offence or breach of discipline, or offered a caution or admonition for a breach of discipline, in relation to the action complained of; or

                     (d)  if, in his or her opinion, the investigation, or further investigation, of that action is not warranted having regard to all the circumstances.

             (2)  Where the Ombudsman is satisfied, with respect to a complaint referred to in subsection (1), that the complainant has exercised a right to cause the action complained of to be reviewed by a court or tribunal constituted by or under a law, the Ombudsman shall determine that the action should not be investigated, or investigated further, as the case requires, under this Act unless he or she is of the opinion that there are special reasons why the action should be investigated, or investigated further, under this Act.

          (2A)  Where the Ombudsman is satisfied, with respect to a complaint referred to in subsection (1), that the complainant has or had a right to cause the action complained of to be reviewed by a court or tribunal constituted by or under a law but has not exercised that right, the Ombudsman may determine that the action should not be investigated, or investigated further, as the case requires, under this Act if he or she is of the opinion that, in all the circumstances of the case, it would be reasonable for the complainant to exercise, or would have been reasonable for the complainant to have exercised, that right.

             (3)  Where the Ombudsman does not, for any reason, investigate, or continue to investigate, any action, the Ombudsman shall, as soon as practicable and in such manner as the Ombudsman thinks fit, inform the complainant and (except where an arrangement with the Commissioner is in force under subsection (4A) relating to a class of actions in which that action is included) the Commissioner of the decision and of the reasons for the decision.

             (4)  Where the Ombudsman makes a determination under subsection (1), (2) or (2A) in respect of a complaint, section 23 shall not be taken to require him or her to commence or to continue an investigation of the complaint or to refer the complaint to the Investigation Division.

          (4A)  The Ombudsman may from time to time make with the Commissioner an arrangement in relation to actions in respect of which complaints referred to in subsection (1) are made, being actions included in a class or classes of actions specified in the arrangement, providing for the manner in which, and the period within which, the Ombudsman is to inform the Commissioner of a determination referred to in subsection (1), (2) or (2A) and of the reasons for the determination.

             (5)  Where a complaint referred to in subsection (1) is made by a complainant at the request of another person or of a body of persons, this section applies as if references to the complainant were references to the person or the body of persons at whose request the complaint is made.

24A  Preliminary inquiries

             (1)  Where a complaint has been made to the Ombudsman under this Part, the Ombudsman may, for the purpose of:

                     (a)  determining whether or not the complaint concerns action taken by an AFP appointee; or

                     (b)  if the Ombudsman is satisfied that the complaint concerns action taken by an AFP appointee—determining whether or not the Ombudsman may, in his or her discretion, determine that the complaint should not be investigated under this Act;

make inquiries of the Commissioner or, if an arrangement with the Commissioner is in force under subsection (2), of the appointee as is, or the appointees as are, referred to in the arrangement.

             (2)  The Ombudsman may from time to time make with the Commissioner an arrangement with respect to the AFP appointees of whom all inquiries, or inquiries included in a class or classes of inquiries specified in the arrangement, are to be made by the Ombudsman in pursuance of subsection (1).


 

Division 2Investigations by the Ombudsman

25  Investigations

             (1)  Before commencing to investigate a complaint or the actions of an AFP appointee under this Part, the Ombudsman shall inform the Commissioner that the complaint is to be investigated or the actions of the appointee are to be investigated.

          (1A)  The Ombudsman may from time to time make with the Commissioner an arrangement with respect to the manner in which, and the period within which, the Ombudsman is to inform the Commissioner that he or she proposes to investigate a complaint or the actions of an AFP appointee under this Part, being a complaint or the actions of an AFP appointee included in a class or classes of complaints or actions of AFP appointees specified in the arrangement.

             (2)  An investigation under this Part shall be conducted in private and, subject to this Act, in such manner as the Ombudsman thinks fit.

             (3)  Whenever it becomes necessary or desirable for the Ombudsman to use persons with police training in connection with his or her investigation under this Part of a complaint, the Ombudsman may, and shall in so far as it is practicable to do so, use, in connection with that investigation:

                     (a)  a Federal police officer who is made available to him or her by the Commissioner for the purposes of the investigation; or

                     (b)  a member of the police force of a State whom the police force of the State agrees to make available to the Ombudsman, for the purposes of the investigation, under arrangements made by the Commissioner.

             (4)  Subject to this Act, the Ombudsman may, for the purposes of an investigation under this Part obtain information from such persons, and make such inquiries, as he or she thinks fit.

             (5)  The Ombudsman may, if he or she considers it would be desirable in a particular case to do so, refer to the Commissioner for investigation and report by the Investigation Division a matter relating to a complaint or the actions of an AFP appointee that is being investigated by the Ombudsman under this Part, being a complaint or the actions of an AFP appointee that is, in substance, about the practices and procedures of the Australian Federal Police.

             (6)  Subject to subsection (7), it is not necessary for the complainant or any other person to be afforded an opportunity to appear before the Ombudsman or any other person in connection with an investigation by the Ombudsman under this Part.

             (7)  The Ombudsman shall not make a report in respect of an investigation of a complaint or the actions of an AFP appointee under this Part in which he or she sets out opinions that are, either expressly or impliedly, critical of:

                     (a)  the Australian Federal Police, a Department or a prescribed authority; or

                     (b)  a person (including an AFP appointee);

unless, before completing the investigation, he or she has afforded:

                     (c)  if the opinions relate to the Australian Federal Police or to an AFP appointee—the Commissioner and the appointee principally concerned in the complaint or whose actions are the subject of the investigation;

                     (d)  if the opinions relate to a Department or a prescribed authority—the principal officer of the Department or authority and the officer of that Department or authority principally concerned in the complaint or whose actions are the subject of the investigation; or

                     (e)  if the opinions relate to a person—that person;

opportunities, or an opportunity, to appear before him or her, or before an authorized person, and to make such submissions, either orally or in writing, in relation to the complaint, as the persons or person to whom the opportunities or opportunity are or is given think or thinks fit.

             (8)  Where the Ombudsman affords the Commissioner, or the principal officer of a Department or of a prescribed authority, an opportunity to appear before him or her or before an authorized person, under subsection (7), the Commissioner or principal officer may appear before the Ombudsman or before the authorized person in person or a person authorized by the Commissioner or principal officer, as the case may be, may appear before the Ombudsman or before the authorized person on behalf of the Commissioner or principal officer.

             (9)  Where the Ombudsman affords a person other than the Commissioner, or the principal officer of a Department or prescribed authority, an opportunity to appear before him or her, or before an authorized person, under subsection (7), the person may, with the approval of the Ombudsman or of the authorized person, as the case may be, be represented by another person.

          (9A)  Where, in relation to an investigation of a complaint or the actions of an AFP appointee under this Part, the Ombudsman proposes to afford a person an opportunity to appear before him or her or before an authorized person and to make submissions under subsection (7), or proposes to make a requirement of a person under section 27:

                     (a)  if the complaint was made orally and the complaint has not been reduced to writing—the complaint shall be reduced to writing accordingly; and

                     (b)  the Ombudsman shall, if he or she has not previously informed the responsible Minister that the complaint is being investigated or the actions of the appointee are being investigated, inform that Minister accordingly.

           (10)  The Ombudsman may, either before or after the completion of an investigation under this Part, discuss any matter that is relevant to the investigation with a Minister concerned with the matter.

           (11)  On the request of the responsible Minister, the Ombudsman shall consult the responsible Minister before he or she forms a final opinion on any of the matters referred to in subsection 31(1) or (2) that are relevant to the action under investigation.

           (12)  Where the Ombudsman becomes of the opinion, either before or after completing an investigation under this Part, that there is evidence that any action taken by the Commissioner or by a Deputy Commissioner was contrary to law or otherwise improper and that the evidence is, in all the circumstances, of sufficient force to justify his or her doing so, the Ombudsman shall bring the evidence to the notice of the Minister.

           (13)  Where the Ombudsman becomes of the opinion, either before or after completing an investigation under this Part, that there is evidence that an AFP appointee other than the Commissioner or a Deputy Commissioner has been guilty of an offence or a breach of discipline and that the evidence is, in all the circumstances, of sufficient force to justify his or her doing so, the Ombudsman shall bring the evidence to the notice of the Commissioner.

25A  Investigations by Commonwealth and State Ombudsmen

             (1)  The Commonwealth Ombudsman may, if he or she thinks fit, make an arrangement with the Ombudsman of a State, or the Ombudsmen of 2 or more States, for and in relation to the investigation by any one or more of the Ombudsmen of action referred to in any of the following paragraphs:

                     (a)  action taken by an AFP appointee or by the Australian Federal Police and action taken:

                              (i)  by a member of the police force of a State;

                             (ii)  by the police force of a State; or

                            (iii)  by a Department of a State or by an authority of a State;

                     (b)  action taken by a body established jointly or administered jointly by the Commonwealth and one or more States, being a body that includes at least one AFP appointee and a member or members of the police force of a State or the police forces of 2 or more States;

                     (c)  action taken by a body referred to in paragraph (b) and action taken:

                              (i)  by an AFP appointee or by the Australian Federal Police;

                             (ii)  by a member of the police force of a State;

                            (iii)  by the police force of a State; or

                            (iv)  by a Department of a State or by an authority of a State.

             (2)  An arrangement made in pursuance of subsection (1) may relate to particular action or actions, to a series of related actions or to actions included in a class or classes of actions.

             (3)  The Commonwealth Ombudsman may arrange with the other Ombudsman or Ombudsmen with whom an arrangement is in force under this section for the variation or revocation of the arrangement.

             (4)  An arrangement under this section, or the variation or revocation of such an arrangement, shall be in writing.

             (5)  The regulations may make provision for and in relation to the participation by the Ombudsman in the carrying out of an investigation in pursuance of an arrangement under this section.

             (6)  Nothing in this section affects the powers and duties of the Ombudsman under any other provision of this Part.

             (7)  Subsection (1) shall not be taken to empower the Ombudsman:

                     (a)  to exercise any of the powers of the Ombudsman of a State except in accordance with subsection 34(7) of the Ombudsman Act 1976; or

                     (b)  to make an arrangement for the exercise by the Ombudsman of a State of a power of the Ombudsman except in accordance with an instrument of delegation referred to in subsection 40(1) of this Act.

26  Special or additional investigations conducted by Ombudsman under this Part

             (1)  This section applies to an investigation of a complaint in pursuance of subparagraph 36(1)(a)(ii) or (2)(a)(i) or section 46.

             (2)  Nothing in this section shall be taken to limit the power of the Ombudsman to take, either before or after completing an investigation to which this section applies, any action that he or she would, in all the circumstances, be authorized to take under any other section contained in this Part and that appears to him or her to be appropriate.

             (3)  On completing an investigation the Ombudsman may, if he or she thinks it appropriate to do so, when giving particulars of the results of his or her investigation to the Commissioner under subsection 34(1):

                     (a)  recommend to the Commissioner that an AFP appointee be:

                              (i)  charged with an offence or a breach of discipline; or

                             (ii)  offered a caution or admonition for a breach of discipline;

                            that the Ombudsman thinks the appointee committed; or

                     (b)  forward to the Minister a request that the Minister cause an inquiry under section 50 to be held into the action that was the subject of the investigation; or

                     (c)  notify the Commissioner, in writing, that the Ombudsman thinks an AFP appointee took action that the appointee should not have taken.

          (3A)  The Ombudsman may, in a notification under paragraph (3)(c), include any recommendation (other than a recommendation referred to in paragraph (3)(a) or (b)) that the Ombudsman thinks fit to make.

          (3B)  If the Ombudsman makes a recommendation under subsection (3A), the Ombudsman may also request the Commissioner to give to the Ombudsman, within a specified time, particulars of the action the Commissioner proposes to take as a result of the recommendation.

             (4)  Where the Ombudsman, in accordance with subsection (3), furnishes a report to the Commissioner of the results of an investigation, being an investigation conducted by the Ombudsman in pursuance of section 46, the Ombudsman shall at the time he or she furnishes that report to the Commissioner, furnish a copy of that report to the Minister, together with any comments relating to that report that he or she wishes to make.

             (5)  As soon as practicable after the Commissioner receives a report of an investigation to which this section applies from the Ombudsman under subsection (3), the Commissioner shall cause to be furnished to the AFP appointee, or each AFP appointee concerned, in such manner as the Commissioner thinks fit, particulars of the results of the investigation carried out by the Ombudsman, together with any comments the Commissioner wishes to make concerning the investigation.

             (6)  The Commissioner may give to the Ombudsman comments about a notification given to him or her under paragraph (3)(c).

             (7)  Sections 32 and 33 apply to a recommendation made under subsection (3A) of this section in the same manner as they apply in the same way as a report to the Commissioner under section 31.

             (8)  On completion of an investigation the Ombudsman may, if he or she thinks fit, give to any Department, body or person comments or suggestions with respect to any matter relating to or arising out of the investigation.

27  Power to obtain information and documents

             (1)  Where the Ombudsman has reason to believe that a person is capable of furnishing information or producing documents or other records relevant to an investigation under this Part, the Ombudsman may, by notice in writing served on the person, require that person, at such place, and within such period or on such date and at such time, as are specified in the notice:

                     (a)  to furnish to the Ombudsman, by writing signed by that person or, in the case of a body corporate, by an officer of the body corporate, any such information; or

                     (b)  to produce to the Ombudsman such documents or other records as are specified in the notice.

             (2)  Without limiting the application of subsection (1), the Commissioner shall, at the request, in writing, of the Ombudsman, cause any documents that are in the possession or under the control of the Investigation Division and that relate to the investigation by the Investigation Division of a complaint that is being investigated under this Part to be produced to the Ombudsman.

             (3)  Where documents or other records are produced to the Ombudsman in accordance with a requirement under subsection (1) or an order under subsection 28A(1), the Ombudsman:

                     (a)  may take possession of, and may make copies of, or take extracts from, the documents or other records;

                     (b)  may retain possession of the documents or other records for such period as is necessary for the purposes of the investigation to which the documents or other records relate; and

                     (c)  during that period shall permit a person who would be entitled to inspect any one or more of the documents or other records if they were not in the possession of the Ombudsman to inspect at all reasonable times such of the documents or other records as that person would be so entitled to inspect.

          (3A)  Where the Ombudsman has reason to believe that a person is able to give information relevant to an investigation under this Part, the Ombudsman may, by notice in writing served on the person, require the person to attend before him or her, on such date and at such time and place as are specified in the notice, to answer questions relevant to the investigation.

             (4)  Where the Attorney-General furnishes to the Ombudsman a certificate certifying that the disclosure to the Ombudsman of information concerning a specified matter (including the furnishing of information in answer to a question) or the disclosure to the Ombudsman of the contents of any documents or records would be contrary to the public interest:

                     (a)  by reason that it would prejudice the security, defence or international relations of the Commonwealth;

                     (b)  by reason that it would involve the disclosure of communications between a Minister and a Minister of a State, being a disclosure that would prejudice relations between the Commonwealth Government and the Government of the State;

                     (c)  by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; or

                     (d)  by reason that it would involve the disclosure of deliberations or advice of the Executive Council;

the Ombudsman is not entitled to require a person to furnish any information concerning the matter, or to produce those documents or records to the Ombudsman.

             (5)  Notwithstanding the provisions of any enactment, a person is not excused from furnishing any information, producing a document or other record or answering a question when required to do so under this Part on the ground that:

                     (a)  the furnishing of the information, the production of the document or record or the answering of the question:

                              (i)  would contravene the provisions of any other enactment;

                             (ii)  would be contrary to the public interest; or

                            (iii)  might make him or her liable to a penalty;

                     (b)  the information, the production of the document or record or the answer to the question might tend to incriminate him or her; or

                     (c)  the information, the document or record or the answer would disclose legal advice furnished to a Minister, to a Department, to the Australian Federal Police or to a prescribed authority;

but the information, the production of the document or record or the answer to the question is not admissible in evidence against him or her in proceedings other than:

                     (d)  an application under subsection 28A(1); or

                     (e)  proceedings for an offence against section 44; or

                    (ea)  a prosecution for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Act; or

                      (f)  proceedings in relation to a breach of discipline.

             (6)  A person is not liable to any penalty under the provisions of any other enactment by reason of his or her furnishing information, producing a document or other record or answering a question when required to do so under this Part.

             (7)  In this section, a reference to a State shall be construed as including a reference to the Northern Territory.

             (8)  The reference in subsection (1) to an officer, in relation to a body corporate, being a body corporate that is not a prescribed authority, includes a reference to a director, secretary, executive officer or employee of the body corporate.

27A  Ombudsman may refer questions to the AAT

             (1)  Where the Ombudsman or Investigation Division is investigating the taking of action under a power, whether conferred by an enactment or otherwise, the Ombudsman may refer a specified question about the taking of the action, or the exercise of the power, to the Administrative Appeals Tribunal if he or she thinks it appropriate.

             (2)  If the Ombudsman refers the question to the Tribunal, the Ombudsman must, as soon as practicable, give written notice of the referral to the Commissioner.

             (3)  The Tribunal may give an advisory opinion on the question.

28  Ombudsman may recommend that the Commissioner refer questions to the AAT

             (1)  Where the Ombudsman or Investigation Division is investigating the taking of action under a power, whether conferred by an enactment or otherwise, the Ombudsman may recommend, in writing, to the Commissioner that the Commissioner refer a specified question about the taking of the action, or the exercise of the power, to the Administrative Appeals Tribunal for an advisory opinion.

             (2)  If the Ombudsman makes a recommendation, the Commissioner must refer the question to the Tribunal within 30 days, or such longer period as is agreed to by the Ombudsman and the Commissioner, after the day on which the Commissioner receives the recommendation.

             (3)  The Tribunal may give an advisory opinion on the question.

             (4)  This section does not limit the Ombudsman’s power under section 27A.

28A  Power of Federal Court of Australia to make orders

             (1)  Where a person fails to comply with a requirement made by the Ombudsman by notice under section 27 to furnish information, to produce documents or other records or to attend before the Ombudsman to answer questions in relation to an investigation under this Part, the Ombudsman may make an application to the Federal Court of Australia for an order directing that person to furnish the information, or to produce the documents or other records, at such place, and within such period or on such date and at such time, as are specified in the order, or to attend before the Ombudsman to answer questions at such place, and on such date and at such time, as are specified in the order, as the case may be.

             (2)  The Federal Court of Australia has jurisdiction with respect to matters arising under subsection (1) in respect of which applications are made to the Court.

             (3)  The Ombudsman shall not make an application to the Federal Court of Australia under subsection (1) unless he or she has informed the Minister in writing of the reasons for the proposed application.

29  Power to examine witnesses

                   The Ombudsman may administer an oath or affirmation to a person required to attend before him or her in pursuance of section 27 and may examine the person on oath or affirmation.

30  Power to enter premises

             (1)  For the purposes of an investigation under this Part, an authorized person may, at any reasonable time of the day, enter any place occupied by the Australian Federal Police, a Department or a prescribed authority and may carry on the investigation at that place.

             (2)  Subsection (1) does not authorize a person to enter, or carry on an investigation at:

                     (a)  a place referred to in paragraph 80(c) of the Crimes Act 1914;

                     (b)  a place that is a prohibited place for the purposes of the Defence (Special Undertakings) Act 1952 by virtue of section 7 of that Act; or

                     (c)  an area of land or water, or an area of land and water, that is declared under section 14 of the Defence (Special Undertakings) Act 1952 to be a restricted area for the purposes of that Act;

unless the Minister administering that Act, or another Minister acting for and on behalf of that Minister, has approved his or her entering the place or area and he or she complies with any conditions imposed by the Minister giving the approval in relation to his or her entering that place or area and the manner in which his or her investigation is to be conducted at that place or area.

             (3)  Where the Attorney-General is satisfied that the carrying on of an investigation at a place might prejudice the security or defence of the Commonwealth, the Attorney-General may, by notice in writing delivered to the Ombudsman, declare the place to be a place to which this subsection applies and, while the declaration is in force, subsection (1) does not authorize a person to enter, or carry on an investigation at, the place unless a Minister specified in the declaration, or another Minister acting for and on behalf of that Minister, has approved his or her entering the place and he or she complies with any conditions imposed by the Minister giving the approval in relation to his or her entering the place and the manner in which his or her investigation is to be conducted at the place.

             (4)  For the purposes of an investigation under this Part, an authorized person is entitled to inspect any documents relevant to the investigation kept at premises entered by him or her under this section, other than documents in respect of which the Attorney-General has furnished a certificate under subsection 27(4), at a reasonable time of the day arranged with the Commissioner or with the principal officer of the Department or prescribed authority, as the case requires.

             (5)  Subsection (4) shall not be taken to restrict the operation of section 27.

             (6)  A reference under this section to an authorized person includes a reference to the Ombudsman and a Deputy Ombudsman.

31  Reports by Ombudsman

             (1)  Where, after an investigation of a complaint or the actions of an AFP appointee under this Part has been completed, the Ombudsman is of the opinion:

                     (a)  that any action taken by an AFP appointee:

                              (i)  appears to have been contrary to law;

                             (ii)  was unreasonable, unjust, oppressive or improperly discriminatory;

                            (iii)  was in accordance with a rule of law, a provision of an enactment or a practice, being a rule, provision or practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory;

                            (iv)  was based either wholly or partly on a mistake of law or of fact; or

                             (v)  was otherwise, in all the circumstances, wrong;

                     (b)  that, in the course of taking any action, an AFP appointee exercised a discretionary power for an improper purpose or on irrelevant grounds; or

                     (c)  in a case where the action to which the complaint or the actions of an AFP appointee relates comprised or included a decision by an AFP appointee to exercise a discretionary power in a particular manner or to refuse to exercise such a power:

                              (i)  that irrelevant considerations were taken into account, or that there was a failure to take relevant considerations into account, in the course of reaching the decision to exercise the power in that manner or to refuse to exercise the power, as the case may be; or

                             (ii)  that the complainant in respect of the investigation or some other person should have been furnished, but was not furnished, with particulars of the reasons for deciding to exercise the power in that manner or to refuse to exercise the power, as the case may be;

this section applies to the decision, recommendation, act or omission constituting that action.

             (2)  Where the Ombudsman is of the opinion:

                     (a)  that a decision, recommendation, act or omission to which this section applies should be referred to the Commissioner for further consideration;

                     (b)  that some particular action could be, and should be, taken to rectify, mitigate or alter the effects of a decision, recommendation, act or omission to which this section applies;

                     (c)  that a decision to which this section applies should be cancelled or varied;

                     (d)  that a rule of law, provision of an enactment or practice on which a decision, recommendation, act or omission to which this section applies was based should be altered;

                     (e)  that reasons should have been, but were not, given for a decision to which this section applies; or

                      (f)  that any other thing should be done in relation to a decision, recommendation, act or omission to which this section applies;

the Ombudsman shall report accordingly to the Commissioner.

             (3)  The Ombudsman:

                     (a)  shall include in a report under subsection (2) his or her reasons for the opinions specified in the report; and

                     (b)  may also include in such a report any recommendations he or she thinks fit to make.

             (4)  The Ombudsman may request the Commissioner to furnish to him or her, within a specified time, particulars of any action that the Commissioner proposes to take with respect to the matters and recommendations included in the report.

             (5)  Where the Ombudsman reports under subsection (2) to the Commissioner, the Commissioner may furnish to the Ombudsman such comments concerning the report as he or she wishes to make.

             (6)  The Ombudsman shall furnish a copy of a report made by him or her under subsection (2) to the responsible Minister.

32  Reports to Prime Minister

             (1)  Where action that is, in the opinion of the Ombudsman, adequate and appropriate in the circumstances is not taken with respect to the matters and recommendations included in a report to the Commissioner under section 31 within a reasonable time after the Ombudsman furnished the report to the Commissioner, the Ombudsman may inform the Prime Minister accordingly in writing.

             (2)  Where the Ombudsman furnishes information to the Prime Minister in accordance with subsection (1) in relation to a report, the Ombudsman shall furnish to the Prime Minister, with the information, a copy of the comments (if any) that the Commissioner has furnished to the Ombudsman concerning the report.

             (3)  In considering whether to furnish information in relation to a report to the Prime Minister in accordance with subsection (1), the Ombudsman shall have regard to any comments concerning the report furnished to him or her by the Commissioner.

33  Special reports to Parliament

                   Where the Ombudsman has, in accordance with subsection 32(1), furnished information to the Prime Minister in relation to a report concerning an investigation made by him or her, the Ombudsman may also forward to the President of the Senate and the Speaker of the House of Representatives, for presentation to the Senate and the House of Representatives, respectively, copies of a report prepared by him or her concerning the investigation for presentation to both Houses of the Parliament, being a report that sets out a copy of any comments concerning the report furnished to the Ombudsman under subsection 31(5) by the Commissioner.

34  Persons affected to be informed of results of investigation by Ombudsman

             (1)  Where the Ombudsman completes his or her investigation of a complaint or the actions of an AFP appointee, he or she shall furnish to the Commissioner and, unless the identity of the complainant is not known, to the complainant, in such manner and at such times as he or she thinks fit, particulars of the results of his or her investigation of the complaint or the actions of an AFP appointee.

             (3)  Subject to subsection (4), the Ombudsman may, if he or she thinks fit, furnish to any Department, body or person comments or suggestions with respect to any matter relating to or arising out of his or her investigation of:

                     (a)  a complaint; or

                     (b)  the actions of an AFP appointee.

             (4)  Notwithstanding subsection (3), where the Ombudsman makes a report to the Commissioner under section 31, the Ombudsman shall not, otherwise than in the report, furnish to the Commissioner comments or suggestions with respect to a matter to which the report relates.

             (5)  Where the Ombudsman makes a report to the Commissioner under section 31 containing recommendations with respect to action in respect of which a complaint has been made:

                     (a)  the Ombudsman shall, if action that is, in the opinion of the Ombudsman, adequate and appropriate in the circumstances is not taken with respect to the recommendations within a reasonable time after the report is furnished to the Commissioner and the identity of the complainant is known—furnish to the complainant a copy of the recommendations, together with such comments (if any) as he or she thinks fit; or

                     (b)  in any other case where the identity of the complainant is known—the Ombudsman may furnish to the complainant a copy of the recommendations, together with such comments (if any) as he or she thinks fit.


 

Division 3Power and duties of Ombudsman in respect of investigations carried out by Investigation Division

35  Powers of Ombudsman in relation to complaints referred to Investigation Division

             (1)  At any time, and from time to time, the Ombudsman may discuss a complaint that is required to be, is being, or has been, investigated by the Investigation Division, or any aspect of such a complaint, with the complainant.

             (2)  At any time, and from time to time, after a complaint has been referred to the Investigation Division and before a copy of the report of the Investigation Division in relation to its investigation of the complaint has been furnished to him or her, the Ombudsman may do all or any of the following things:

                     (a)  request the Commissioner to furnish to him or her a report concerning the progress of the investigation;

                     (b)  request the Commissioner to arrange for him or her to have access to any document specified in the request, being a document that is in the possession or under the control of the Investigation Division and that is relevant to the complaint;

                     (c)  with the consent of the Commissioner, interview a person (other than the complainant) in relation to the complaint.

             (3)  The Commissioner shall, as soon as practicable after receipt of a request under paragraph (2)(a) or (b) in relation to a complaint, cause the request to be complied with.

36  Action to be taken by Ombudsman upon receipt of report of an investigation

             (1)  Upon receipt of a copy of a report of the results of the investigation of a complaint carried out by the Investigation Division, the Ombudsman may do some or all of the following things:

                     (a)  if the Ombudsman is of the opinion that the complaint requires further investigation:

                              (i)  request the Commissioner, in writing, to arrange for the complaint to be investigated further by the Investigation Division under Part II; or

                             (ii)  notify the Commissioner, in writing, that he proposes himself, or she proposes herself, to conduct an investigation of the complaint under this Part;

                     (b)  notify the Commissioner, in writing, that, in the Ombudsman’s opinion, an AFP appointee referred to in the report took action that the member should not have taken although he or she did not, in taking that action, commit an offence or breach of discipline, and of his or her reasons for being of that opinion;

                     (c)  recommend to the Commissioner, in writing, that an AFP appointee referred to in the report be charged with an offence or breach of discipline, or offered a caution or admonition for a breach of discipline, that, in the opinion of the Ombudsman, the appointee has committed.

             (2)  Where the Ombudsman requests the Commissioner to arrange for a complaint to be further investigated by the Investigation Division under Part II, the Ombudsman may, on receipt of a copy of a report of the results of the further investigation of the complaint, do some or all of the following things:

                     (a)  if the Ombudsman is of the opinion that the complaint still requires further investigation:

                              (i)  notify the Commissioner, in writing, that he proposes himself, or she proposes herself, to conduct an investigation of the complaint under this Part; or

                             (ii)  forward to the Minister a request that the Minister cause an inquiry under section 50 to be held into the action the subject of the complaint;

                     (b)  notify the Commissioner, in writing, that, in the Ombudsman’s opinion, an AFP appointee referred to in the report took action that the member should not have taken although he or she did not, in taking that action, commit an offence or breach of discipline, and of his or her reasons for being of that opinion;

                     (c)  recommend to the Commissioner, in writing, that an AFP appointee referred to in the report be charged with an offence or breach of discipline, or offered a caution or admonition for a breach of discipline, that, in the opinion of the Ombudsman, the appointee has committed.

             (3)  The Ombudsman may, in a notification given or recommendation made under subsection (1) or (2), include any recommendation (not being a recommendation that an AFP appointee be charged with an offence or breach of discipline or offered a caution or admonition for a breach of discipline) that the Ombudsman thinks fit to make, and may also request the Commissioner to give to the Ombudsman, within a specified time, particulars of any action that the Commissioner proposes to take in consequence of the recommendation.

          (3A)  The Ombudsman may (otherwise than in a notification given or recommendation made under subsection (1) or (2)) make, in writing, any recommendation to the Commissioner (not being a recommendation that an AFP appointee be charged with an offence or breach of discipline or offered a caution or admonition for a breach of discipline) that the Ombudsman thinks fit to make, and may also request the Commissioner to give to the Ombudsman, within a specified time, particulars of any action that the Commissioner proposes to take in consequence of the recommendation.

             (4)  The Commissioner may furnish to the Ombudsman comments concerning a notification furnished to him or her under paragraph (1)(b) or (2)(b) or a recommendation made under subsection (3) or (3A).

             (5)  Sections 32 and 33 apply to and in relation to a recommendation made under subsection (3) or (3A) of this section in like manner as they apply to and in relation to a report made to the Commissioner under section 31.

             (6)  Upon receipt of a copy of a report of the investigation, or further investigation, of a complaint carried out by the Investigation Division, the Ombudsman may, if he or she thinks fit, furnish to any Department, body or person comments or suggestions with respect to any matter relating to or arising out of the investigation or further investigation, as the case may be.

37  Ombudsman to inform complainant of results of investigation

             (1)  Upon receipt of a copy of a report of the investigation, or further investigation, of a complaint carried out by the Investigation Division, the Ombudsman shall, in such manner and at such times as he or she thinks fit:

                     (a)  furnish to the complainant, in such manner and at such times as he or she thinks fit, particulars of the results of the investigation or further investigation and of any recommendation he or she proposes to make, or has made, to the Commissioner; and

                     (b)  in a case where he or she proposes to recommend, or has recommended, that an AFP appointee be charged with an offence or breach of discipline or cautioned for a breach of discipline—inform the complainant that he or she will be notified, by the Commissioner, of any charge laid, or caution accepted, in relation to the complaint.

             (2)  Where the Ombudsman furnishes to the Commissioner a notification under paragraph 36(1)(b) or 36(2)(b) or makes a recommendation in accordance with subsection 36(3) or subsection 36(3A):

                     (a)  the Ombudsman shall, if action that is, in the opinion of the Ombudsman, adequate and appropriate in the circumstances is not taken with respect to the recommendations within a reasonable time after the notification is furnished to the Commissioner—furnish to the complainant a copy of the recommendations together with such comments (if any) as he or she thinks fit; or

                     (b)  in any other case—the Ombudsman may furnish the complainant a copy of the recommendations, together with such comments (if any) as he or she thinks fit.

             (3)  In this section, a reference to a complainant does not include a reference to a complainant whose identity is not known.


 

Division 4General

38  Annual report and additional reports to Parliament

             (1)  Section 19 of the Ombudsman Act 1976 extends, by virtue of this section, to operations of the Ombudsman under this Act as if:

                     (a)  references in that section to operations of the Ombudsman included references to operations of the Ombudsman under this Act;

                     (b)  references in that section to complaints made under the Ombudsman Act 1976 concerning action taken by officers included references to complaints made under this Act, either to the Ombudsman or to AFP appointees, concerning action taken by AFP appointees; and

                     (c)  the reference in subsection 19(8) of the Ombudsman Act 1976 to subsection 8(5) of that Act were a reference to subsection 8(5) of the Ombudsman Act 1976 or subsection 25(7) of this Act, whichever is applicable to the relevant investigation.

             (2)  The Ombudsman shall include in each report made by him or her under subsection 19(1) of the Ombudsman Act 1976 the prescribed particulars with respect to complaints that were made to him or her, or made to AFP appointees and notified to him or her, under this Act, during the year to which the report relates.

38A  Progress reports about complaints

             (1)  The Ombudsman may, at any time, give a complainant a progress report about a complaint to which this Act applies.

             (2)  A progress report may set out any information that the Ombudsman thinks appropriate about the way in which the complaint is being dealt with under this Act.

             (3)  A progress report is additional to any other report that must be given to the complainant under this Act.

39  Ombudsman not to be sued

             (1)  Subject to section 41, neither the Ombudsman nor a person acting under his or her direction or authority is liable to an action, suit or proceeding for or in relation to an act done or omitted to be done in good faith in exercise or purported exercise of any power or authority conferred by this Act.

             (2)  A reference in this section to the Ombudsman includes a reference to a Deputy Ombudsman or a delegate of the Ombudsman.

40  Delegation

             (1)  The Ombudsman may, either generally or as otherwise provided by the instrument of delegation, by instrument in writing, delegate to a person all or any of his or her powers under this Act, other than his or her powers under sections 31, 32 and 33 and this power of delegation.

             (2)  A power so delegated when exercised by the delegate shall, for the purposes of this Act, be deemed to have been exercised by the Ombudsman.

             (3)  A delegate shall, upon request by a person affected by the exercise of any powers delegated to him or her, produce the instrument of delegation, or a copy of the instrument, for inspection.

             (4)  A delegation under this section does not prevent the exercise of a power by the Ombudsman.

41  Officers to observe secrecy

             (1)  In this section, officer means:

                     (a)  the Ombudsman;

                     (b)  a Deputy Ombudsman;

                     (c)  a person who is a member of the staff appointed or employed for the purposes of the Ombudsman Act 1976 under the Public Service Act 1999;

                     (d)  a person, not being a person referred to in paragraph (b) or (c), to whom the Ombudsman has, under section 40, delegated any of his or her powers or who is an authorized person; or

                     (e)  a person who is made available to the Ombudsman as mentioned in paragraph 25(3)(a) or (b).

             (2)  Subject to this section, an officer shall not, either directly or indirectly, and either while he or she is, or after he or she ceases to be, an officer, make a record of, or divulge or communicate, any information acquired by him or her by reason of his or her being an officer, being information that was disclosed or obtained under the provisions of this Act, including information furnished by the Ombudsman of a State or information disclosed to or obtained by the Commonwealth Ombudsman in the exercise of a power of the Ombudsman of a State delegated to him or her as provided by subsection 34(7) of the Ombudsman Act 1976.

Penalty:  30 penalty units.

             (3)  Subsection (2) does not prevent an officer:

                     (a)  from making a record of, or divulging or communicating information acquired by him or her in the performance of his or her duties as an officer for purposes connected with the exercise of the powers and the performance of the functions of the Ombudsman under this Act;

                     (b)  from divulging or communicating information:

                              (i)  if the information was furnished by an AFP appointee in the performance of his or her duties as such an AFP appointee—with the consent of the Commissioner or of the responsible Minister; or

                             (ii)  if the information was furnished by a person otherwise than as set out in subparagraph (i)—with the consent of the person who furnished the information; or

                     (c)  from divulging or communicating information in any proceedings before a court.

             (4)  Subject to subsection (5), subsection (2) does not prevent the Ombudsman or a Deputy Ombudsman from disclosing, in a report made under this Act, such matters as, in his or her opinion, ought to be disclosed in the course of setting out the grounds for the conclusions and recommendations contained in the report.

             (5)  Where the Attorney-General furnishes to the Ombudsman a certificate in writing certifying that:

                     (a)  the disclosure of information or documents concerning a specified matter or matters included in a specified class of matters; or

                     (b)  the disclosure of a specified document or of documents included in a specified class of documents;

would, for a reason specified in the certificate, being a reason referred to in paragraph 27(4)(a), (b), (c) or (d), be contrary to the public interest, an officer shall not, either directly or indirectly and either while he or she is, or after he or she ceases to be, an officer, except as provided in subsection (6) of this section:

                     (c)  divulge or communicate any information acquired by him or her under the provisions of this Act concerning such a matter or such a document;

                     (d)  divulge or communicate any of the contents of such a document; or

                     (e)  furnish such a document, or a copy of, or an extract from, such a document.

Penalty:  Imprisonment for 2 years.

             (6)  Subsection (5) does not prevent an officer, in the performance of his or her duties as an officer:

                     (a)  from divulging or communicating information referred to in that subsection to another officer;

                     (b)  from furnishing any of the contents of a document referred to in that subsection, or a copy of or an extract from such a document, to another officer; or

                     (c)  from returning such a document that has been produced to him or her to the person lawfully entitled to the custody of the document.

             (7)  Subject to subsection (8), where the Ombudsman proposes, for purposes connected with the exercise of his or her powers or performance of his or her functions under this Act, to furnish information, or to send a document, or a copy of, or extract from, a document, to the Ombudsman of a State, the Ombudsman shall not do so unless he or she is satisfied that a law of the State makes provision corresponding to the provision made by this section with respect to the confidentiality of information acquired by the Ombudsman of the State.

             (8)  Subsection (7) does not apply in relation to any information or document obtained by the Ombudsman in the exercise of a power of the Ombudsman of the State that the Ombudsman was authorized to exercise in pursuance of subsection 34(7) of the Ombudsman Act 1976.

41A  Disclosure of information by Ombudsman

             (1)  Nothing in this Act shall be taken to preclude the Ombudsman from disclosing information, or making a statement, to any person or to the public or a section of the public with respect to the performance of the functions of, or an investigation by, the Ombudsman under this Part if, in the opinion of the Ombudsman, it is in the interests of the Australian Federal Police or any Department, prescribed authority or person (including an AFP appointee), or is otherwise in the public interest, so to disclose that information or to make that statement.

             (2)  The Ombudsman shall not disclose information or make a statement under subsection (1) with respect to a particular investigation where the disclosure of that information, or the making of that statement, is likely to interfere with the carrying out of that or any other investigation or the making of a report under this Part.

             (3)  The Ombudsman shall not, in disclosing information or making a statement under subsection (1) with respect to a particular investigation:

                     (a)  set out opinions that are, either expressly or impliedly, critical of the Australian Federal Police or a Department, prescribed authority or person (including an AFP appointee) unless the Ombudsman has complied with subsection 25(7) in relation to the investigation; or

                     (b)  disclose the name of a complainant or any other matter that would enable a complainant to be identified unless it is fair and reasonable in all the circumstances to do so.

             (4)  This section has effect notwithstanding subsection 25(2) and section 41 (other than subsection (5) of that section).

43  Register to be kept by Ombudsman

                   The Ombudsman shall establish and maintain a register containing the prescribed particulars of, or relating to:

                     (a)  complaints made to him or her under this Part and complaints that are to be treated as having been so made; and

                     (b)  complaints made to AFP appointees that are notified to him or her under section 6; and

                     (c)  investigations of the actions of AFP appointees on his or her own initiative under section 21A.

44  Offences

             (1)  A person shall not:

                     (a)  fail to attend before the Ombudsman;

                     (b)  refuse or fail to be sworn or make an affirmation;

                    (ba)  refuse or fail to furnish information; or

                     (c)  refuse or fail to answer a question or produce a document or record;

when so required in pursuance of this Part.

Penalty:  Imprisonment for 6 months.

          (1A)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

             (3)  A reference in this section to the Ombudsman includes a reference to a Deputy Ombudsman.

45  Protection from civil actions

                   Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person by reason of any of the following acts done in good faith:

                     (a)  the making of a complaint to the Ombudsman under this Part;

                     (b)  the making of a statement to, or the furnishing of a document (including a report furnished under subsection 10(1)) or information to, a person (being an officer within the meaning of section 41) for the purposes of this Part, whether or not the statement was made, or the document or information was furnished, in pursuance of a requirement under section 27 or an order under section 28A.


 

Part IVSpecial investigations

  

46  Circumstances in which special investigation to be conducted

             (1)  Where the Commissioner informs the Ombudsman, or the Ombudsman informs the Commissioner, that he or she is satisfied that a complaint:

                     (b)  concerns action taken by an AFP appointee serving in the Investigation Division; or

                     (c)  is, for any other reason, not appropriate for investigation or further investigation by the Investigation Division;

the complaint shall be investigated:

                     (d)  if the Commissioner and the Ombudsman so agree or the Minister so determines under subsection (2)—by the Ombudsman under Part III;

                     (e)  if the Commissioner and the Ombudsman so agree—under this Part, in accordance with arrangements made by the Commissioner, by a person agreed to by the Commissioner and the Ombudsman; or

                      (f)  if the Minister so determines under subsection (2)—under this Part, in accordance with arrangements made by the Commissioner, by a person specified by the Minister in the determination.

             (2)  Where the Commissioner and the Ombudsman are unable to reach agreement in respect of a complaint to which subsection (1) applies that the complaint be investigated by the Ombudsman or by some other person who is available to conduct the investigation, they shall report accordingly to the Minister who, subject to subsection (4), shall determine whether the complaint is to be investigated by the Ombudsman or by another person who is available to conduct the investigation of the complaint.

             (3)  The Ombudsman or other person required to investigate a complaint under subsection (1):

                     (a)  may, if he or she is of the opinion that an inquiry that is being, or is to be held under section 50 is likely to be concerned with any matter to which the complaint relates, defer or suspend his or her investigation of the complaint until that inquiry has been completed; and

                     (b)  may, after considering the report of the results of an inquiry under section 50 into any matter to which the complaint relates, determine that the complaint should not be investigated or further investigated by him or her.

             (4)  Where the Minister, upon receipt of a report under subsection (2) in respect of a complaint, is of the opinion that any inquiry that is being, or is to be, held under section 50 is likely to be concerned with any matter to which the complaint relates:

                     (a)  he or she may defer making a determination under subsection (2) until that inquiry has been completed; and

                     (b)  if, after considering the report of the results of the inquiry and consulting with the Ombudsman, he or she is satisfied that the matters to which the complaint relates have been adequately inquired into, he or she may determine that the complaint need not be investigated further.

             (5)  Subsection 25(1) does not apply in relation to the investigation of a complaint by the Ombudsman in pursuance of subsection (1).

             (6)  Nothing in this section shall be taken to prevent the Commissioner from taking action, or causing action to be taken, to prevent the loss, destruction or fabrication of evidence relating to a complaint that may be, or is being, investigated in accordance with arrangements made under this section.

47  Investigations by special investigator

             (1)  The person conducting an investigation of a complaint under this Part shall, subject to subsection (2), investigate the complaint in such manner as he or she thinks fit.

             (2)  The Ombudsman may, where the Commissioner agrees, give to the person conducting the investigation directions in relation to the conduct of the investigation.

             (3)  Subsections 50(2) to (10) (inclusive) apply to and in relation to an investigation of a complaint under this Part in like manner as they apply to and in relation to an inquiry held under subsection 50(1) and as if references in those subsections to an inquiry were references to an investigation under this Part.

             (4)  The person carrying out the investigation shall, whenever required to do so by the Commissioner or the Ombudsman, as the case may be, furnish to the Commissioner or the Ombudsman, as the case may be, a report concerning the progress of the investigation.

48  Report of investigation

             (1)  Where an investigation is conducted under this Part, the person holding the investigation shall report the results of the investigation:

                     (a)  subject to paragraph (b)—to the Commissioner; or

                     (b)  if the Commissioner had agreed to the investigation being conducted in accordance with the directions given by the Ombudsman—to the Ombudsman;

and may include in his or her report such recommendations (if any) arising out of the investigation as he or she deems fit.

             (2)  Where the person holding the investigation reports to the Commissioner, the Commissioner shall:

                     (a)  as soon as practicable after the report is furnished to him or her, cause a copy of the report to be furnished to the Ombudsman, together with any comments relating to the report that the Commissioner wishes to make; and

                     (b)  cause to be furnished to the AFP appointee concerned and, unless the identity of the complainant is not known, to the complainant, in such manner and at such times as the Commissioner thinks fit, particulars of the results of the investigation, together with any comments he or she wishes to make concerning the investigation.

             (3)  Where the person holding the investigation reports to the Ombudsman, the Ombudsman shall:

                     (a)  as soon as practicable after the report is furnished to him or her, furnish a copy of the report to the Commissioner, together with any comments relating to the report that the Ombudsman wishes to make; and

                     (b)  unless the identity of the complainant is not known, furnish particulars of the results of the investigation to the complainant in such manner and at such time as the Ombudsman thinks fit, together with any comments he or she wishes to make concerning the investigation.

             (4)  Where the Commissioner receives a copy of the report from the Ombudsman under subsection (3), the Commissioner shall furnish particulars of the results of the investigation to the AFP appointee concerned in such manner and at such time as he or she thinks fit, together with any comments he or she wishes to make concerning the investigation.

49  Action consequential upon report

             (1)  Where the Ombudsman receives the report, or a copy of the report, of the results of an investigation of a complaint that was investigated under this Part or of the results of the further investigation of a complaint that was previously so investigated—the provisions of section 36 apply as if the complaint had been investigated, or further investigated, by the Investigation Division and that report were the report of the results of that investigation or further investigation.

             (2)  Where the Commissioner is requested by the Ombudsman under subparagraph 36(1)(a)(i) to arrange for a complaint that has been investigated under this Part to be investigated further under this Part:

                     (a)  the Commissioner shall, unless it is for any reason impracticable to do so, make arrangements for the complaint to be investigated further by the person who carried out the original investigation; and

                     (b)  sections 47 and 48 apply to and in relation to the further investigation in like manner as they applied to and in relation to the original investigation.

             (3)  Where the Commissioner receives a report, or a copy of the report, of the results of an investigation, or further investigation, of a complaint under this Part the provisions of sections 11, 12 and 13 apply as if the complaint had been investigated, or further investigated, by the Investigation Division and that report were the report of the results of that investigation or further investigation.

             (4)  As soon as practicable after the Commissioner has decided to take any action (including action by way of causing an AFP appointee to be charged with an offence or breach of discipline or offered a caution or admonition for a breach of discipline), or has decided not to take any action, in consequence of his or her consideration of a report of the investigation, or further investigation, of a complaint under this Part the Commissioner shall inform the Minister, in writing, of his or her decision.


 

Part VInquiries directed by the Minister

  

50  Minister may arrange special inquiries

             (1)  The Minister may, where he or she thinks it appropriate to do so, arrange for an inquiry to be held, by such person or persons, and in such manner, as he or she determines, concerning:

                     (a)  any action taken by an AFP appointee (including action the subject of a complaint made to an AFP appointee or to the Ombudsman); or

                     (b)  any other matter relating to the Australian Federal Police.

             (2)  Subject to this section, the person or persons holding an inquiry under subsection (1) may, for the purposes of the inquiry, obtain information from such persons, and make such inquiries, as he or she thinks, or they think, fit.

             (3)  The person or persons holding an inquiry under subsection (1) may, for the purposes of the inquiry:

                     (a)  enter premises occupied by the Australian Federal Police and carry on the inquiry on those premises;

                     (b)  inspect any documents or records kept at premises occupied by the Australian Federal Police and take extracts from, or a copy of, such a document or record or cause such extracts or such a copy to be taken; and

                     (c)  examine any property used by the Australian Federal Police.

             (4)  For the purposes of an inquiry under subsection (1):

                     (a)  the person holding the inquiry, or any of the persons holding the inquiry, may direct an AFP appointee:

                              (i)  to furnish information or produce a document or other record, being information or a document or record that is relevant to the inquiry; or

                             (ii)  to attend before him or her at a time and place specified by him or her and then and there to answer questions relevant to the inquiry;

                     (b)  the person or persons holding the inquiry may, by means of sound recording apparatus or otherwise, make a record of any information furnished, or answer given, in compliance with such a direction or cause such a record to be made; and

                     (c)  the person or persons holding the inquiry may take extracts from, or a copy of, a document or record produced in compliance with such a direction or cause such extracts or such a copy to be taken.

             (5)  A person, or any of the persons, holding an inquiry under subsection (1) may administer an oath or affirmation to an AFP appointee required to attend before him or her in pursuance of paragraph (4)(a) and may examine the appointee on oath or affirmation.

             (6)  Where an AFP appointee is directed under subsection (4) to furnish information, produce a document or other record or answer a question, the appointee is not excused from complying with the direction on the ground that:

                     (a)  the furnishing of the information, the production of the document or record or the answering of the question:

                              (i)  would be contrary to the public interest; or

                             (ii)  might make him or her liable to a penalty; or

                     (b)  the information, the production of the document or record or the answer to the question might tend to incriminate him or her;

or on any other ground, but the information, the production of the document or record or the answer to the question is not admissible in evidence against him or her in any civil or criminal proceedings other than proceedings for an offence against subsection (8) or for or in relation to a breach of discipline.

             (7)  Nothing in subsection (6) shall be taken to affect the admissibility in evidence, in any civil or criminal proceedings, of:

                     (a)  any information furnished by an AFP appointee to the person or persons holding an inquiry under subsection (1);

                     (b)  the production of a document or other record by an AFP appointee to the person or persons holding an inquiry under subsection (1); or

                     (c)  an answer given by an AFP appointee to a question put to him or her by the person, or by any of the persons, holding an inquiry under subsection (1);

where the AFP appointee has not been expressly directed, under subsection (4), to furnish the information, produce the document or record or answer the question.

             (8)  An AFP appointee shall not:

                     (a)  fail to attend before a person when required to do so under this section; or

                    (aa)  refuse or fail to be sworn or make an affirmation, when required to do so under this section; or

                    (ab)  refuse or fail to furnish information, produce a document or other record, or to answer a question, when required to do so under this section; or

                     (b)  intentionally obstruct, hinder or resist a person, or any of the persons, holding an inquiry under subsection (1); or

                     (c)  furnish information or make a statement to a person, or any of the persons, holding an inquiry under subsection (1) knowing that it is false or misleading in a material particular.

Penalty:  Imprisonment for 6 months.

          (8A)  Paragraphs (8)(a), (aa), (ab) and (b) do not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (8A) (see subsection 13.3(3) of the Criminal Code).

             (9)  For all the purposes of the Australian Federal Police Act 1979, and the regulations in force under that Act, a direction given under paragraph (4)(a) by the person, or any of the persons, holding an inquiry under subsection (1) has effect as if it had been given by the Commissioner.

           (10)  An AFP appointee is not liable to any penalty (other than a penalty for an offence against subsection (8)) under the provisions of any other law by reason of furnishing information, producing a document or other record or answering a question when directed to do so by the person, or any of the persons, holding an inquiry under subsection (1).

51  Minister to cause Ombudsman etc. to be informed of manner of inquiry

             (1)  Where the Minister arranges for an inquiry to be held into any action or other matter, the Minister shall cause the Ombudsman, and such other persons or bodies as the Minister deems appropriate, to be informed that the inquiry will be held and of the person or persons by whom, and the manner in which, the inquiry will be held.

             (2)  Where the Ombudsman is of the opinion that an inquiry under section 50 relates to a complaint which the Ombudsman is investigating, or proposes to investigate, under Part III, the Ombudsman may suspend the investigation, or defer commencing the investigation, of the complaint under that Part until after the inquiry has been completed.

52  Reports of special inquiries

             (1)  Where an inquiry is held in accordance with arrangements made under section 50, the person or persons holding the inquiry shall report to the Minister the results of the inquiry and may make such recommendations (if any) arising out of the inquiry as the Minister deems or they deem fit.

             (2)  On receipt of a report of the results of an inquiry held in accordance with arrangements made under section 50:

                     (a)  if the inquiry was held in pursuance of a request made to the Minister by the Ombudsman under paragraph 26(3)(b) or paragraph 36(2)(a)(ii)—the Minister shall cause a copy of the report of the results of the inquiry to be forwarded to the Ombudsman; and

                     (b)  the Minister may cause such action to be taken, arising out of the Minister’s consideration of the report, as he or she deems fit, including action by way of causing an AFP appointee to be charged with an offence or breach of discipline or offered a caution or admonition for a breach of discipline.


 

Part VAUndisputed charges

52A  Undisputed charges in respect of breaches of discipline

             (1)  If:

                     (a)  proceedings are begun by the Commissioner against an AFP appointee under the prescribed regulations in respect of a breach of discipline; and

                     (b)  the proceedings are the result of:

                              (i)  the investigation of a complaint that was referred to the Commissioner by the Ombudsman; or

                             (ii)  the investigation of a complaint (other than a complaint made by a person known to the Commissioner to be an AFP appointee) that was referred to the Investigation Division under section 6; or

                            (iii)  the investigation of the actions of the appointee by the Ombudsman under Part III; and

                     (c)  the appointee admits the truth of the matters alleged to constitute the breach;

the proceedings are to be heard and determined by the Commissioner, or by the Disciplinary Tribunal, in accordance with the following subsections.

             (2)  If the Commissioner thinks that the public interest requires that the proceedings be dealt with by the Tribunal, then the proceedings are to be dealt with by the Tribunal under subsection 67(1).

             (3)  If the Commissioner does not think that the public interest requires the proceedings to be dealt with by the Tribunal, and the Ombudsman agrees in writing, then the proceedings are to be dealt with by the Commissioner.

             (4)  If:

                     (a)  the Commissioner does not think that the public interest requires the proceedings to be dealt with by the Tribunal; and

                     (b)  the Ombudsman does not agree in writing;

the proceedings are to be dealt with by the Tribunal or by the Commissioner, as the Attorney-General, in writing, directs.

             (5)  The following rules apply to a direction by the Attorney-General for the purposes of subsection (4):

                     (a)  before giving the direction, the Attorney-General must consider any relevant report, notification or recommendation and the results of any relevant inquiries;

                     (b)  if the Attorney-General thinks that the public interest requires the proceedings to be dealt with by the Tribunal—the Attorney-General must, in writing, direct that they be dealt with by the Tribunal under subsection 67(1).

52B  Commissioner may impose penalty

             (1)  If, after hearing and determining proceedings, the Commissioner finds an AFP appointee guilty of a breach of discipline, the Commissioner may, subject to subsection (2), impose any penalty on the appointee in respect of the breach that the Commissioner has power to impose in respect of such a breach under the prescribed regulations.

             (2)  Unless the Commissioner has first complied with subsections (3) and (4), the Commissioner must not impose a penalty under subsection (1) by way of dismissing the appointee from the Australian Federal Police.

             (3)  The Commissioner must give the appointee a notice informing the appointee:

                     (a)  that the Commissioner considers that it might be appropriate to impose a penalty by way of dismissing the appointee; and

                     (b)  that the appointee may, within 7 days after receiving the notice, give to the Commissioner any written statement that the appointee wishes to be taken into consideration in deciding the appropriate penalty to be imposed.

             (4)  The Commissioner must take into consideration the matters contained in any statements given in accordance with the notice.

             (5)  Subsection (2) does not affect the rights of the AFP appointee under sections 74 and 75.

52C  Ombudsman to be notified of penalty

                   If the Commissioner imposes a penalty on an AFP appointee, the Commissioner must, as soon as is practicable, give written notification of the imposition of the penalty to the appointee and the Ombudsman.

52D  Ombudsman may inform Attorney-General of penalty

                   On being notified of the imposition of a penalty, the Ombudsman may, if he or she thinks that the penalty is insufficient, give to the Attorney-General:

                     (a)  written notification of the imposition of the penalty; and

                     (b)  any written comments the Ombudsman thinks relevant.

52E  Appeals

                   If a penalty is imposed on an AFP appointee by the Commissioner under subsection 52B(1), the AFP appointee or the Attorney-General may appeal against the penalty under section 68 as if it were imposed by the Commissioner under subsection 67(6).


 

Part VIThe Federal Police Disciplinary Tribunal

Division 1Preliminary

53  Interpretation

             (1)  In this Part, unless the contrary intention appears:

Deputy President means a Deputy President of the Disciplinary Tribunal.

judicial office means:

                     (a)  an office of Judge of the Federal Court of Australia or of the Supreme Court of a State or Territory; or

                     (b)  an office the holder of which has, by virtue of an Act, the same status as a Judge referred to in paragraph (a).

legal practitioner means a barrister, a solicitor, a barrister and solicitor or a legal practitioner of the High Court or of the Supreme Court of a State or Territory.

President means the President of the Disciplinary Tribunal.

Registrar means the Registrar of the Disciplinary Tribunal.

             (2)  In this Part, unless the contrary intention appears, a reference to a proceeding before the Disciplinary Tribunal shall be read as a reference to:

                     (a)  a proceeding in respect of a charge required to be heard by the Tribunal under section 67;

                     (b)  an appeal to the Tribunal under section 68 or 69; or

                     (c)  an inquiry by the Tribunal into a matter referred by the Minister to the Tribunal under section 70.

             (3)  For the purposes of this Part and of the prescribed regulations in their application for the purposes of this Part, a power under the prescribed regulations to recommend to the Governor-General that the Governor-General dismiss the member from the Australian Federal Police in respect of a breach of discipline shall be deemed to be a power to impose a penalty on the appointee in respect of the breach of discipline, and the making, in respect of an AFP appointee, of such a recommendation shall be deemed to be the imposition of a penalty on the appointee.


 

Division 2Establishment of Federal Police Disciplinary Tribunal

54  Establishment and constitution of Federal Police Disciplinary Tribunal

             (1)  There is hereby established a Tribunal, to be known as the Federal Police Disciplinary Tribunal.

             (2)  The Disciplinary Tribunal shall consist of a President and such number of Deputy Presidents and other members as are appointed in accordance with this section.

             (3)  A member of the Disciplinary Tribunal shall be appointed by the Governor-General.

             (4)  The Deputy Presidents and other members of the Disciplinary Tribunal have seniority as Deputy Presidents or other members, respectively, according to the dates of their appointments.

             (5)  A person holding office as a member of the Disciplinary Tribunal is not required to devote the whole of his or her time to the duties of his or her office.

55  Qualifications of members

             (1)  A person is not qualified to be appointed as President or as a Deputy President unless he or she is the holder of a judicial office.

             (2)  A person is not qualified to be appointed as a member other than President or a Deputy President unless:

                     (a)  he or she holds an office of Magistrate of a State or Territory; or

                     (b)  he or she has been, for a period of not less than 5 years, a legal practitioner.

56  Appointment of holder of judicial office as member of Disciplinary Tribunal not to affect tenure etc.

                   Where a person who holds:

                     (a)  an office of Judge of the Federal Court of Australia or of the Supreme Court of a Territory other than the Northern Territory;

                     (b)  an office the holder of which has, by virtue of an Act, the same status as a Judge referred to in paragraph (a); or

                     (c)  an office of Magistrate of a Territory other than the Northern Territory;

is appointed as a member of the Disciplinary Tribunal, the appointment or service of the person as such a member does not affect his or her tenure of that office, or his or her rank, title, status or precedence, his or her salary or other allowances or his or her other rights or privileges as the holder of that office, and, for all purposes, his or her service as a member of the Tribunal shall be taken to be service as the holder of that office.

57  Terms and conditions of appointment

                   Subject to this Part, a member of the Tribunal holds office for such period, not exceeding 7 years, as is specified in the instrument of his or her appointment and on such terms and conditions as the Governor-General determines, but is eligible for re-appointment.

58  Arrangements for appointment of holder of judicial office of a State or of the Northern Territory etc.

             (1)  The Governor-General may arrange:

                     (a)  with the Governor of a State for the performance by a person who holds office as a judge of the Supreme Court of that State; or

                     (b)  with the Administrator of the Northern Territory for the performance by a person who holds office as a judge of the Supreme Court of that Territory;

of the functions of the President or of a Deputy President of the Disciplinary Tribunal.

             (2)  The Governor-General may arrange:

                     (a)  with the Governor of a State for the performance by a person who holds an office of Magistrate of that State; or

                     (b)  with the Administrator of the Northern Territory for the performance by a person who holds an office of Magistrate of that Territory;

of the functions of a member, other than the President or a Deputy President, of the Disciplinary Tribunal.

59  Remuneration of members of Disciplinary Tribunal

             (1)  A member of the Disciplinary Tribunal, other than a member who is the holder of:

                     (a)  a judicial office; or

                     (b)  an office of Magistrate of a State or Territory;

in respect of which the member receives remuneration that is based upon his or her holding the office on a full-time basis, is to be paid such remuneration as the Remuneration Tribunal determines. If no determination of that remuneration by that Tribunal is in operation, the member is to be paid such remuneration as is prescribed.

             (2)  A member of the Disciplinary Tribunal shall be paid such allowances as are prescribed.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

60  Acting appointments

             (1)  The Minister may appoint the holder of a judicial office to act as President:

                     (a)  during a vacancy in the office of President, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the President is absent from duty or from Australia or is, for any other reason, unavailable to perform the duties of his or her office;

but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

             (2)  The Minister may appoint the holder of a judicial office to act as a Deputy President during any period, or during all periods, when a Deputy President is absent from duty or from Australia or is, for any other reason, unavailable to perform the duties of his or her office.

             (3)  The Minister may appoint a person qualified to be appointed as a member of the Disciplinary Tribunal (other than the President or a Deputy President) to act as such a member during any period, or during all periods, when a member of the Tribunal (other than the President or a Deputy President) is absent from duty or from Australia or is, for any other reason, unavailable to perform the duties of his or her office.

             (4)  An appointment of a person under subsection (1), (2) or (3) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

             (5)  The Minister may:

                     (a)  determine the terms and conditions of appointment, including remuneration and allowances, of a person appointed under subsection (1), (2) or (3); and

                     (b)  terminate such an appointment at any time.

             (6)  Where a person has been appointed under subsection (1), (2) or (3) during a period when a member of the Disciplinary Tribunal is absent from duty or from Australia or is, for any other reason, unavailable to perform the duties of his or her office, the Minister may, by reason of a pending proceeding or other special circumstances, direct, before the member of the Tribunal who is absent ceases to be so absent or unavailable, that the person so appointed shall continue to act under the appointment after the member of the Tribunal ceases to be absent or unavailable and until he or she resigns the appointment or the Minister terminates the appointment, but a person shall not continue to act by virtue of this subsection for more than 12 months after the member of the Tribunal ceases to be absent or unavailable.

             (7)  The appointment of a person to act as a member of the Disciplinary Tribunal ceases to have effect if the person resigns the appointment by giving a signed notice of resignation to the Minister.

             (8)  While a person is acting as the President, a Deputy President or another member of the Disciplinary Tribunal he or she has and may exercise all the powers and shall perform all the functions, of the President, a Deputy President or another member of the Tribunal, as the case may be, under this Act.

             (9)  Where:

                     (a)  the Disciplinary Tribunal as constituted for the purposes of a proceeding consists of a person acting or purporting to be appointed under this section; or

                     (b)  a person so acting or purporting to be appointed has done any act;

the validity of any decision of, or of any direction given or other act done by, the person so acting or purporting to be appointed shall not be called in question on the ground that:

                     (c)  the occasion for the person to act or for the appointment of the person has not arisen;

                     (d)  there is a defect or irregularity in or in connection with the appointment of the person;

                     (e)  the occasion for the person to act had ceased; or

                      (f)  the appointment had ceased to have effect.

61  Removal from office—President or Deputy President

             (1)  If the President or a Deputy President ceases to be a person who holds judicial office, the Governor-General may remove him or her from office.

             (2)  The removal from office of the President under subsection (1) does not prevent his or her re-appointment as a member other than the President or a Deputy President.

             (3)  The President or a Deputy President shall not be removed from office except as provided by this section.

62  Removal from office—other members

             (1)  This section applies to a member of the Disciplinary Tribunal other than the President or a Deputy President.

             (2)  The Governor-General may remove from office a member of the Disciplinary Tribunal to whom this section applies on an address praying for his or her removal on the ground of proved misbehaviour or incapacity being presented to the Governor-General by each House of the Parliament in the same session of the Parliament.

             (3)  The Governor-General may suspend such a member of the Disciplinary Tribunal from office on the ground of proved misbehaviour or incapacity.

             (4)  Where the Governor-General suspends a member of the Disciplinary Tribunal from office under subsection (3), the Minister shall cause a statement of the grounds of the suspension to be laid before each House of the Parliament within 7 sitting days of that House after the suspension.

             (5)  Where such a statement has been laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member of the Disciplinary Tribunal should be removed from office and, if each House so passes such a resolution, the Governor-General shall remove the member of the Disciplinary Tribunal from office.

             (6)  If, at the expiration of 15 sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the suspension terminates.

             (7)  The suspension of a member of the Disciplinary Tribunal from office under this section does not affect any entitlement of the member to be paid remuneration and allowances.

             (8)  If a member of the Disciplinary Tribunal to whom this section applies becomes bankrupt, or if the affairs of such a member are being dealt with under Part X of the Bankruptcy Act 1966, the Governor-General shall remove the member from office.

             (9)  If a member of the Disciplinary Tribunal to whom this section applies ceases to possess the qualifications necessary for his or her appointment, the Governor-General shall remove him or her from office.

           (10)  Where the Governor-General is satisfied that a member of the Disciplinary Tribunal to whom this section applies has failed, without reasonable excuse, to comply with his or her obligations under section 84, the Governor-General shall remove him or her from office.

           (11)  A member of the Disciplinary Tribunal to whom this section applies shall not be removed or suspended from office except as provided by this section.

63  Resignation

                   A member of the Disciplinary Tribunal may resign his or her office by giving a signed notice of resignation to the Governor-General.


 

Division 3Staff of Disciplinary Tribunal

64  Staff of Disciplinary Tribunal

             (1)  There shall be a Registrar of the Disciplinary Tribunal and such Deputy Registrars of the Disciplinary Tribunal as are appointed in accordance with this section.

             (2)  The Registrar and the Deputy Registrars shall be appointed by the Minister and have such duties and functions as are provided by the regulations and such other duties and functions as the President directs.

             (3)  The Registrar and the Deputy Registrars, and the staff necessary to assist them, shall be persons engaged under the Public Service Act 1999.


 

Division 4Constitution and powers of Disciplinary Tribunal

65  Arrangement of business

             (1)  The President may give directions as to the arrangement of the business of the Disciplinary Tribunal and as to the person who is to constitute the Tribunal for the purposes of a particular proceeding.

             (2)  The President may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him or her, delegate all or any of his or her powers under subsection (1) to a Deputy President.

             (3)  A power so delegated, when exercised by the delegate, shall, for all purposes of this Act, be deemed to have been exercised by the President.

             (4)  A delegation under subsection (2) does not prevent the exercise of a power by the President.

             (5)  Sittings of the Disciplinary Tribunal for the purposes of a particular proceeding shall be held at such place and times as are determined by the member who constitutes the Tribunal for the purposes of the proceeding.

66  Exercise of powers of Disciplinary Tribunal

             (1)  The Disciplinary Tribunal shall, for the purposes of the exercise of its powers in relation to a particular proceeding, be constituted by one member of the Tribunal.

             (2)  The Disciplinary Tribunal constituted by one member of the Tribunal may sit and exercise the powers of the Tribunal notwithstanding that the Tribunal constituted by another member of the Tribunal is at the same time sitting and exercising the powers of the Tribunal.

66A  Proceedings for charge where caution not accepted

                   Where:

                     (a)  an AFP appointee is offered a caution for a breach of discipline; and

                     (b)  the appointee does not accept the caution;

the Commissioner shall institute proceedings against the appointee in respect of the breach of discipline.

66B  Proceedings for charge where admonition not accepted

                   Where:

                     (a)  an AFP appointee is offered an admonition for a breach of discipline; and

                     (b)  the appointee does not accept the admonition;

the Commissioner shall institute proceedings against the appointee in respect of the breach 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.

68  Appeals to Disciplinary Tribunal from proceedings remitted to Commissioner

             (1)  Where the Commissioner imposes a penalty on an AFP appointee in respect of a breach of discipline in pursuance of subsection 67(6):

                     (a)  the Commissioner shall cause the appointee to be notified of the penalty imposed on him or her in respect of the breach of discipline; and

                     (b)  the appointee or the Attorney-General may appeal to the Disciplinary Tribunal against the penalty imposed on the appointee in respect of the breach of discipline.

             (2)  An appeal to the Disciplinary Tribunal under subsection (1):

                     (a)  shall be in writing;

                     (b)  shall set out the grounds on which it is made; and

                     (c)  shall be lodged with the Registrar of the Tribunal within 28 days after the appointee is notified of the penalty imposed on him or her, or within such further time as the Disciplinary Tribunal, constituted by the President or a Deputy President, allows (whether before or after the expiration of that period).

             (3)  An appeal to the Disciplinary Tribunal under subsection (1) by an AFP appointee against the penalty imposed on him or her in respect of a breach of discipline may be made on either or both of the following grounds:

                     (a)  that the penalty is unduly severe;

                     (b)  that the penalty is not authorized by law.

             (4)  An appeal to the Disciplinary Tribunal under subsection (1) by the Attorney-General may be made on the ground that the penalty imposed on the appointee in respect of a breach of discipline is inadequate.

             (5)  The Disciplinary Tribunal constituted by the President or a Deputy President shall hear and determine the appeal and may:

                     (a)  affirm the penalty imposed on the appointee in respect of the breach of discipline; or

                     (b)  set aside the penalty imposed on the appointee in respect of the breach of discipline and substitute for that penalty such other penalty as the Tribunal deems fit, being a penalty that the Commissioner would have had the power to impose under the prescribed regulations if he or she had heard the proceedings and had found the appointee guilty of the breach of discipline.

             (6)  Where the Disciplinary Tribunal under subsection (5):

                     (a)  affirms the penalty imposed on an AFP appointee in respect of a breach of discipline; or

                     (b)  substitutes for the penalty imposed on an AFP appointee in respect of a breach of discipline another penalty that the Tribunal deems fit;

the provisions of the Australian Federal Police Act 1979 and of the regulations in force under that Act apply to and in relation to the penalty so affirmed or substituted as if it had been imposed on the appointee by the Commissioner under the prescribed regulations.

             (7)  The institution of an appeal to the Disciplinary Tribunal under subsection (1) against a penalty imposed on an AFP appointee by the Commissioner does not affect the imposition of the penalty but, if the Disciplinary Tribunal directs that the imposition of the penalty be suspended pending the hearing and determination of the appeal, the imposition of the penalty is suspended accordingly.

69  Appeal to Disciplinary Tribunal from proceedings before Commissioner

             (1)  Where the Commissioner imposes a penalty on an AFP appointee in respect of a breach of discipline otherwise than in pursuance of subsection 67(6):

                     (a)  the Commissioner shall cause the appointee to be notified:

                              (i)  of his or her finding and of the reasons for that finding; and

                             (ii)  of the penalty imposed in respect of the breach of discipline; and

                     (b)  the appointee may appeal to the Disciplinary Tribunal.

             (2)  An appeal to the Disciplinary Tribunal under this section:

                     (a)  shall be in writing;

                     (b)  shall set out the grounds on which it is made; and

                     (c)  shall be lodged with the Registrar of the Tribunal within 28 days after the AFP appointee is notified of the finding, or within such further time as the Disciplinary Tribunal, constituted by the President or a Deputy President, allows (whether before or after the expiration of that period).

             (3)  An appeal to the Disciplinary Tribunal under this section may be made on one or more of the following grounds:

                     (a)  that the finding was wrong either in law or in fact or both;

                     (b)  that the penalty is unduly severe;

                     (c)  that the penalty is not authorized by law.

             (4)  The Disciplinary Tribunal, constituted by the President or a Deputy President, shall hear and determine an appeal by an AFP appointee under this section and may:

                     (a)  set aside the finding of the Commissioner and either substitute for that finding such finding as, in its opinion, should have been made in the proceeding, or dismiss the proceeding;

                     (b)  if the Tribunal substitutes a finding that the appointee committed a different breach of discipline—impose such penalty in respect of the breach of discipline as the Tribunal deems fit, being a penalty that the Commissioner would have had the power to impose on the appointee under the prescribed regulations if he or she had found the appointee guilty of that breach of discipline;

                     (c)  affirm the penalty imposed on the appointee in respect of the breach of discipline; or

                     (d)  set aside the penalty imposed on the appointee in respect of the breach of discipline and substitute for that penalty such other penalty as the Tribunal deems fit, being a penalty that the Commissioner had the power to impose on the appointee under the prescribed regulations in respect of the breach of discipline.

             (5)  The Disciplinary Tribunal shall not substitute, for a finding that an AFP appointee is guilty of a breach of discipline, a finding that the appointee is guilty of another breach of discipline unless it has afforded the Commissioner (or an AFP appointee nominated by the Commissioner) and the appointee concerned the opportunity to show cause to the Tribunal why the substituted finding should not be made.

             (6)  Where the Disciplinary Tribunal under subsection (4):

                     (a)  imposes a penalty in respect of a breach of discipline different from that with which the AFP appointee concerned was charged;

                     (b)  affirms the penalty imposed on the AFP appointee concerned in respect of a breach of discipline; or

                     (c)  substitutes for the penalty imposed on the AFP appointee concerned in respect of a breach of discipline another penalty that the Tribunal deems fit;

the provisions of the Australian Federal Police Act 1979 and of the regulations in force under that Act apply to and in relation to the penalty so imposed, affirmed or substituted as if it had been imposed on the AFP appointee by the Commissioner under the prescribed regulations.

             (7)  The institution by an AFP appointee of an appeal to the Disciplinary Tribunal under this section does not affect the imposition of a penalty on the appointee by the Commissioner but, if the Disciplinary Tribunal directs that the imposition of the penalty be suspended pending the hearing and determination of the appeal, the imposition of the penalty is suspended accordingly.

70  Minister may refer matter to Disciplinary Tribunal for inquiry and report

             (1)  The Disciplinary Tribunal may inquire into a matter relating to the Australian Federal Police that is referred to it by the Minister.

             (2)  If the Minister so directs, the Disciplinary Tribunal shall be constituted, for the purposes of the inquiry, by the President or by a Deputy President.

             (3)  The Minister may arrange for counsel to be engaged to assist the Disciplinary Tribunal in connection with the inquiry.

             (4)  Where the Disciplinary Tribunal is not assisted by counsel, the Commissioner shall, if he or she is requested by the Tribunal to do so, arrange for a member of the Investigation Division or for another appropriate AFP appointee to assist the Tribunal in connection with the inquiry.

             (5)  Upon completing its inquiry, the Disciplinary Tribunal shall report to the Minister the results of the inquiry.

71  Powers of Tribunal

             (1)  The Disciplinary Tribunal may, in any proceeding before it:

                     (a)  take evidence on oath or affirmation; and

                     (b)  adjourn the proceeding from time to time.

             (2)  The Disciplinary Tribunal may, at any time during the course of any proceeding before it:

                     (a)  of its own motion; or

                     (b)  at the request of a person who is a party to the proceeding;

by notice in writing signed by a member of the Tribunal or the Registrar or a Deputy Registrar, summon a person to appear before the Tribunal at the hearing of the proceeding to give evidence and to produce such documents (if any) as are referred to in the summons.

             (3)  The Disciplinary Tribunal may, at any time during the course of any proceeding before it, refer a matter arising in the proceeding to the Commissioner for investigation, and where a matter is so referred:

                     (a)  the Commissioner shall refer the matter to the Investigation Division for investigation;

                     (b)  sections 7 and 8 apply as if the matter were a complaint referred to the Investigation Division under section 6; and

                     (c)  section 10 does not apply but, when the Investigation Division has completed the investigation, the officer in charge shall cause a report, in writing, of the results of the investigation to be prepared and given to the Commissioner, who shall furnish the report to the Disciplinary Tribunal.

             (4)  The Disciplinary Tribunal may, at any time during the course of any proceeding before it:

                     (a)  if the Tribunal is constituted by a person who holds judicial office—direct; or

                     (b)  in any other case—recommend;

that an AFP appointee be suspended from duty pending the hearing and determination of the proceeding.

             (5)  Where the Disciplinary Tribunal gives a direction under subsection (4) that an AFP appointee be suspended from duty, the Commissioner shall suspend the appointee from duty accordingly and, where the Disciplinary Tribunal makes a recommendation under subsection (4) that an AFP appointee be suspended from duty, the Commissioner may, if he or she thinks fit, suspend the appointee from duty accordingly.

72  Amendment of defect or error in proceeding

             (1)  At any stage in a proceeding before the Disciplinary Tribunal, the Tribunal may, on such terms as are just, make such amendment as it thinks necessary to correct any defect or error in the proceedings.

             (2)  All necessary amendments shall be made for the purpose of determining the real questions in controversy or otherwise depending on the proceeding.

73  Arrest of witness failing to attend inquiry

             (1)  Where a person who has been summoned under subsection 71(2) to attend before the Disciplinary Tribunal as a witness in an inquiry fails to attend as required by the summons, the member constituting the Tribunal may, upon being satisfied that the summons has been duly served and that reasonable expenses have been paid or tendered to the person, issue a warrant for the apprehension of the person.

             (2)  The warrant authorises any Federal police officer or member of the Police Force of a State or Territory to apprehend the person and bring the person before the Disciplinary Tribunal, and for that purpose, to detain that person in custody until the person is released by order of the Tribunal.

             (3)  The apprehension of a person under this section does not relieve the person from any liability incurred by him or her by reason of his or her failure to attend before the Disciplinary Tribunal.

74  Hearings to be in public except in special circumstances

             (1)  Subject to subsection (2), the hearing of a proceeding before the Disciplinary Tribunal shall be in public.

             (2)  Where the Disciplinary Tribunal is satisfied that it is desirable to do so in the public interest or by reason of the confidential nature of any evidence or matter, the Tribunal may:

                     (a)  direct that the hearing, or a part of the hearing, shall take place in private and give directions as to the persons who may be present; and

                     (b)  give directions restricting or prohibiting the publication or disclosure:

                              (i)  of evidence given before the Tribunal, whether in public or in private;

                             (ii)  of any matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; or

                            (iii)  of any finding or decision of the Tribunal in relation to the proceeding.

             (3)  A person shall not contravene or fail to comply with a direction under this section that is applicable to him or her.

Penalty:  Imprisonment for 6 months.

75  Representation of parties

             (1)  At the hearing of a proceeding, other than a proceeding by way of an inquiry under section 70, before the Disciplinary Tribunal, a party to the proceeding may appear in person or may be represented by a legal practitioner or by some other person.

             (2)  In proceedings heard by the Disciplinary Tribunal in pursuance of subsection 67(1) or (2), the Commissioner and the AFP appointee charged shall be the parties to the proceeding before the Tribunal.

             (3)  Where a person appeals to the Disciplinary Tribunal under section 68 or 69, the Commissioner and the person so appealing shall be the parties to the proceeding before the Tribunal.

             (4)  Where the Attorney-General appeals to the Disciplinary Tribunal under section 68 on the ground that the penalty imposed on an AFP appointee in respect of a breach of discipline is inadequate, the Attorney-General and the appointee concerned shall be the parties to the proceeding before the Tribunal.

             (5)  The Disciplinary Tribunal may, in an inquiry under section 70, permit any person whom it deems fit to appear before the Tribunal in person or to be represented before it by a legal practitioner or by some other person.

             (6)  At the hearing of a proceeding before the Disciplinary Tribunal in relation to a matter in respect of which there was made a complaint to which section 6 or 22 applied, the Tribunal may, if it is satisfied that there are special circumstances that justify it in so doing, grant leave to the complainant to appear in person before the Tribunal in the proceeding or be represented before the Tribunal in the proceeding by a legal practitioner or by some other person, and where leave is so granted, the complainant or his or her representative may take such part in the proceeding as the Tribunal permits.

76  Procedure generally

             (1)  In a proceeding before the Disciplinary Tribunal, the procedure of the Tribunal is, subject to this Part, and to the regulations, within the discretion of the Tribunal.

             (2)  A proceeding before the Disciplinary Tribunal shall be conducted with as little formality and technicality and with as much expedition as the requirements of this Part and a proper consideration of the matter before the Tribunal permit.

             (3)  The Disciplinary Tribunal is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

             (4)  The regulations may make provision, not inconsistent with this Part, for or in relation to:

                     (a)  the practice and procedure of the Disciplinary Tribunal;

                    (aa)  the standard of proof required in proceedings before the Tribunal;

                     (b)  the stay of proceedings before the Tribunal or of all or any action under a decision of the Tribunal; and

                     (c)  the payment of costs and expenses in respect of proceedings before the Tribunal and the assessment of those costs and expenses.

             (5)  Subject to section 74, the Tribunal shall, in a proceeding heard by it in pursuance of section 67 or an appeal heard by it under section 68 or 69, give reasons in writing for its decision and those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings are based.

             (6)  The Disciplinary Tribunal shall cause a copy of its decision and reasons to be furnished to each person who is a party to the proceeding.

77  Protection of members of Disciplinary Tribunal, barristers and witnesses

             (1)  A member of the Disciplinary Tribunal has, in the performance of his or her duty as such a member, the same protection and immunity as a Justice of the High Court.

             (2)  A legal practitioner or other person appearing before the Disciplinary Tribunal has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.

             (3)  Subject to this Part, a person summoned to attend or appearing before the Disciplinary Tribunal as a witness has the same protection, and is, in addition to the penalties provided by this Part, subject to the same liabilities, as a witness in proceedings in the High Court.


 

Division 5Appeals to Federal Court of Australia

78  Interpretation

                   In this Division, unless the contrary intention appears:

                     (a)  a reference to a proceeding before the Disciplinary Tribunal shall be construed as not including a reference to a proceeding by way of inquiry under section 70;

                     (b)  a reference to a question of law shall be construed as including a reference to the question whether there was sufficient evidence to justify a finding of fact by the Tribunal; and

                     (c)  a reference to the Court shall be construed as a reference to the Federal Court of Australia.

79  Appeal to Federal Court of Australia from decisions of Disciplinary Tribunal

             (1)  A person who was a party to a proceeding before the Disciplinary Tribunal may appeal to the Court, on a question of law, from a decision of the Tribunal in that proceeding.

          (1A)  Where, in pursuance of section 67, 68 or 69, the Disciplinary Tribunal imposes a penalty on a person in respect of a breach of discipline (other than a penalty of admonition or reprimand), the person or the Commissioner may appeal to the Court from the decision of the Tribunal on the ground that the penalty is unduly severe or is inadequate.

          (1B)  On application by a person who wishes to appeal to the Court under subsection (1A) against a decision of the Tribunal, the Tribunal constituted by the President or by a Deputy President may suspend the operation of the decision for 28 days or such further period as the Tribunal in its discretion directs and on such conditions (if any) as it thinks fit.

             (2)  The appeal shall be instituted:

                     (a)  within 28 days after the day on which a document setting out the terms of the decision of the Disciplinary Tribunal was furnished to the appellant or within such further time as the Court, whether before or after the expiration of that period, allows; and

                     (b)  in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.

             (3)  The Court has jurisdiction to hear and determine the appeal, and that jurisdiction shall be exercised by the Court constituted as a Full Court.

             (4)  The Court shall, in determining the appeal, make such order as it thinks appropriate.

             (5)  Without limiting by implication the generality of subsection (4), the orders that may be made by the Court on the appeal include an order affirming or setting aside the decision of the Disciplinary Tribunal and an order remitting the proceeding to be heard and determined again, either with or without the hearing of further evidence, by the Tribunal and in accordance with any directions of the Court.

             (6)  Subject to the following provisions of this section, the institution of an appeal to the Court from a decision of the Disciplinary Tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision.

             (7)  Where an appeal is instituted in the Court from a decision of the Disciplinary Tribunal, the Court or a Judge of the Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:

                     (a)  the decision of the Tribunal or a part of that decision; and

                     (b)  the decision to which the proceeding before the Tribunal related or a part of that decision;

as the Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.

             (8)  Where an order is in force under subsection (7) (including an order that has previously been varied on one or more occasions under this subsection), the Court or a Judge of the Court may make an order varying or revoking the first-mentioned order.

             (9)  An order in force under subsection (7) (including an order that has previously been varied on one or more occasions under subsection (8)):

                     (a)  is subject to such conditions as are specified in the order; and

                     (b)  has effect until:

                              (i)  where a period for the operation of the order is specified in the order—the expiration of that period or, if a decision is given on the appeal before the expiration of that period, the giving of the decision; or

                             (ii)  where no period is so specified—the giving of a decision on the appeal.

80  Reference of question of law to the Federal Court of Australia

             (1)  The Disciplinary Tribunal may, of its own motion or, if it thinks fit, on the application of a party to a proceeding before the Tribunal, refer a question of law arising in that proceeding for determination by the Court but, in the case of a proceeding before the Tribunal constituted by a member of the Tribunal other than the President or a Deputy President, a question shall not be so referred without the concurrence of the President.

             (2)  The Court has jurisdiction to hear and determine the question of law, and that jurisdiction shall be exercised by the Court constituted as a Full Court.

             (3)  Where a question of law arising in a proceeding before the Disciplinary Tribunal has been referred to the Court under subsection (1), the Tribunal shall not, in that proceeding:

                     (a)  give a decision to which the question is relevant while the reference is pending; or

                     (b)  proceed in a manner, or give a decision, that is inconsistent with the determination of the Court on the question.

81  Sending of documents to, and disclosure of documents by, Federal Court of Australia

             (1)  Where an appeal is instituted in the Court under section 79 or a question of law is referred to the Court under section 80:

                     (a)  the Disciplinary Tribunal shall, notwithstanding any direction under section 74, cause to be sent to the Court all documents that were before the Tribunal in connection with the proceedings to which the appeal or reference relates; and

                     (b)  at the conclusion of the appeal, the Court shall cause the documents to be returned to the Tribunal.

             (2)  If there is in force in respect of any of the documents a direction under section 74 restricting or prohibiting the disclosure of any matter contained in a document, the Court shall, subject to any order of the Court to the contrary, ensure that that matter is not disclosed to a person other than a member of the Court as constituted for the purposes of the appeal.


 

Division 6General

82  Failure of witness to attend

             (1)  A person served with a summons to appear as a witness before the Disciplinary Tribunal shall not:

                     (a)  fail to attend as required by the summons; or

                     (b)  fail to appear and report himself or herself from day to day unless excused, or released from further attendance, by the Tribunal.

Penalty:  Imprisonment for 6 months.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

83  Refusal to be sworn or to answer questions

             (1)  A person appearing as a witness before the Disciplinary Tribunal shall not refuse or fail:

                     (a)  to be sworn or to make an affirmation;

                     (b)  to answer a question that he or she is required to answer by the Tribunal; or

                     (c)  to produce a document that he or she was required to produce by a summons under this Act served on him or her as prescribed.

Penalty:  Imprisonment for 6 months.

          (1A)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

             (2)  A person appearing as a witness before the Disciplinary Tribunal shall not give evidence that is false or misleading.

Penalty:  Imprisonment for 6 months.

             (3)  Subject to subsection (4), it is a reasonable excuse for such a person to refuse or fail to answer a question or to produce a document if the answer to the question, or the production of the document, may tend to prove that the person has committed an offence against a law or, in the case of an AFP appointee, that the appointee has been guilty of a breach of discipline.

             (4)  Where the Disciplinary Tribunal is inquiring into a matter into which the Tribunal has, under section 70, been directed to inquire, a person appearing before the Tribunal to give evidence or produce documents is not excused from answering a question or producing a document on the ground that the answer to the question, or the production of the document, may tend to prove that the person has committed an offence against a law or, in the case of an AFP appointee, that the appointee has been guilty of a breach of discipline.

             (5)  Evidence given by a person, or the production by a person of a document, upon an inquiry referred to in subsection (4) is not admissible against the person in any civil or criminal proceedings other than proceedings for an offence against this section or against section 35 or 36 of the Crimes Act 1914.

84  Disclosure of interests by members of Disciplinary Tribunal

             (1)  Where a member who constitutes, or is to constitute, the Disciplinary Tribunal for the purposes of a proceeding has or acquires any interest, pecuniary or otherwise, that could conflict with the proper performance of his or her functions in relation to that proceeding:

                     (a)  the person shall disclose the interest to the parties to the proceeding; and

                     (b)  except with the consent of all the parties to the proceeding, the person shall not take part in the proceeding.

             (2)  Where the President of the Disciplinary Tribunal becomes aware that a member who constitutes, or is to constitute, the Tribunal for the purposes of a proceeding has, in relation to that proceeding, such an interest as is mentioned in subsection (1):

                     (a)  if the President considers that the member should not take part, or should not continue to take part, in the proceeding—the President shall give a direction to the member accordingly; or

                     (b)  in any other case—the President shall cause the interest of the member to be disclosed to the parties to the proceeding.

             (3)  In this section a reference to a party to a proceeding, being an inquiry conducted by the Disciplinary Tribunal in pursuance of section 70, shall be construed as a reference to a person permitted by the Tribunal under subsection 75(5) to appear or be represented before the Tribunal in the inquiry.

85  Contempt of Disciplinary Tribunal

                   A person shall not:

                     (a)  insult or disturb a member of the Disciplinary Tribunal in the exercise of his or her powers or functions as a member;

                     (b)  interrupt the proceedings of the Tribunal;

                     (c)  create a disturbance in or near a place where the Tribunal is sitting; or

                     (d)  do any other act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court.

Penalty:  Imprisonment for 6 months.

86  Annual Report

             (1)  The President shall, as soon as practicable after 30 June in each year, submit to the Minister a report of the operations of the Disciplinary Tribunal during that year.

             (2)  The Minister shall cause the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.

             (3)  The first report under this section shall be submitted as soon as practicable after 30 June first occurring after the date of commencement of this Act and shall relate to the operations of the Disciplinary Tribunal during the period that commenced on that date and ended on that 30 June.


 

Part VIIMiscellaneous

  

87  Secrecy

             (1)  Each of the following persons is a person to whom this section applies:

                     (a)  an AFP appointee;

                     (b)  a person who is conducting an investigation on behalf of the Investigation Division in pursuance of an authority given under section 8;

                     (c)  a person who is conducting an investigation in accordance with arrangements made by the Commissioner under section 46;

                     (d)  a person who is conducting an inquiry in accordance with arrangements made by the Minister under section 50.

             (2)  Subject to this section, a person who is, or has been, a person to whom this section applies, shall not, either directly or indirectly, and either while he or she is, or after he or she has ceased to be, a person to whom this section applies, except in the performance of his or her duties or with the consent, in writing, of the appropriate person, make a record of, or divulge or communicate, prescribed information acquired at any time by the person because he or she is, or has been, a person to whom this section applies.

Penalty:  30 penalty units.

             (3)  Subsection (2) does not:

                     (a)  prevent a person who is, or has been, a person to whom this section applies from disclosing, in a report under this Act, such matters as, in his or her opinion, ought to be disclosed in the course of setting out the grounds for the conclusions contained in the report; or

                     (b)  prevent a person from producing a record referred to in subsection (2) or giving information so referred to in evidence before a court, the Disciplinary Tribunal or a person who is authorized to hear and determine proceedings instituted against an AFP appointee in respect of a breach of discipline.

          (3A)  Subsection (2) does not prevent the Commissioner from disclosing information, or making a statement, to any person or to the public or a section of the public with respect to the performance of the functions of, or an investigation or inquiry by, the Investigation Division if, in the opinion of the Commissioner, it is in the interests of the Australian Federal Police or of any person, or is otherwise in the public interest, to do so, having regard to whether the disclosure of that information, or the making of that statement would, or could reasonably be expected to:

                     (a)  prejudice the fair trial of a person or the impartial adjudication of a particular matter;

                     (b)  reveal, or enable a person to ascertain, the existence or identity of a confidential source of information or the identity of a complainant;

                     (c)  constitute an unwarranted invasion of the privacy of any person; or

                     (d)  endanger the physical safety of any person.

             (4)  Subsection (2) does not prevent an AFP appointee from making a communication for the purposes of, or in connection with, the making of a complaint to the Ombudsman or to the Commissioner in respect of action taken by a member of the Investigation Division or by an AFP appointee or other person authorized under section 8 to make an investigation on behalf of that Division, in the course of, or for the purposes of, an investigation by that Division.

             (5)  For the purposes of this section:

                     (a)  the Ombudsman is the appropriate person in the case of a person who is conducting, or has conducted, an investigation in accordance with arrangements made by the Commissioner under section 46 and is or was required, under section 48, to report to the Ombudsman in relation to the investigation;

                     (b)  the Minister is the appropriate person in the case of a person who is conducting, or has conducted, an inquiry in accordance with arrangements made under section 50; and

                     (c)  the Commissioner is the appropriate person in the case of any other person to whom this section applies.

             (6)  In this section, a reference to the duties of a person to whom this section applies shall be construed as a reference to the duties of the position or appointment by virtue of the holding of which the person is or was a person to whom this section applies.

             (7)  In subsection (2), prescribed information means information supplied to or obtained by the Australian Federal Police in the course of, or for the purposes of, the investigation of a complaint, or the holding of an inquiry, concerning action taken by an AFP appointee.

88  AFP appointee to give name and address of place of duty on request

                   An AFP appointee who is requested by a person to furnish to the person his or her name or the address of his or her place of duty, or both, and is informed by the person, either expressly or by necessary implication, that the person is complaining, or proposes to complain, concerning action taken by that appointee:

                     (a)  shall not refuse or fail to comply with the request;

                     (b)  shall not furnish to the person a false name; and

                     (c)  shall not furnish to the person as the address of his or her place of duty an address other than the full and correct address of his or her ordinary place of duty.

Penalty:  5 penalty units.

88A  Offence of victimisation

                   A person must not cause, or threaten to cause, detriment to another person (the victim) on the ground that the victim, or any other person:

                     (a)  has made or might make a complaint under this Act; or

                     (b)  has given or might give a document or other information to a person under this Act.

Penalty:  Imprisonment for 6 months.

89  Regulations

                   The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, prescribing penalties not exceeding a fine of 5 penalty units for offences against the regulations.


Notes to the Complaints (Australian Federal Police) Act 1981

Note 1

The Complaints (Australian Federal Police) Act 1981 as shown in this compilation comprises Act No. 21, 1981 amended as indicated in the Tables below.

All relevant information pertaining to application, saving or transitional provisions prior to 17 April 1997 is not included in this compilation. For subsequent information see Table A.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

Complaints (Australian Federal Police) Act 1981

21, 1981

9 Apr 1981

1 May 1982 (see Gazette 1982, No. S79)

 

Ombudsman (Miscellaneous Amendments) Act 1983

62, 1983

12 Oct 1983

Part IV (ss. 30, 31): 5 Dec 1983 (see s. 2(2) and Gazette 1983, No. S305)
Remainder: 12 Oct 1983 (see s. 2(1))

Statute Law (Miscellaneous Provisions) Act (No. 1) 1984

72, 1984

25 June 1984

S. 3: 23 July 1984 (a)

S. 5(1)

Statute Law (Miscellaneous Provisions) Act (No. 2) 1984

165, 1984

25 Oct 1984

S. 3: (b)

Ss. 2(32) and 6(1)

Complaints (Australian Federal Police) Amendment Act 1985

122, 1985

28 Oct 1985

28 Oct 1985

S. 15

Statute Law (Miscellaneous Provisions) Act (No. 2) 1986

168, 1986

18 Dec 1986

S. 3: Royal Assent (c)

S. 5(1)

Statute Law (Miscellaneous Provisions) Act 1987

141, 1987

18 Dec 1987

S. 3: Royal Assent (d)

S. 5(1)

Australian Federal Police Legislation Amendment Act (No. 2) 1989

153, 1989

17 Dec 1989

Ss. 1, 2 and Part 3 (ss. 61, 62): Royal Assent
S. 11: 1 July 1991
Ss. 38 and 71: 1 Jan 1991
Remainder: 1 Jan 1990 (see Gazette 1989, No. S397)

as amended by

 

 

 

 

Crimes Legislation Amendment Act 1991

28, 1991

4 Mar 1991

(see 28, 1991 below)

Law and Justice Legislation Amendment Act 1989

11, 1990

17 Jan 1990

Parts 1 and 3 (ss. 1, 2, 6, 7): Royal Assent
Ss. 8–10: 17 July 1990
Ss. 12, 13, 51(1)(b) and 51(2): 17 Jan 1990 (see s. 2(5))
Remainder: 14 Feb 1990

Crimes Legislation Amendment Act 1991

28, 1991

4 Mar 1991

S. 74(1): Royal Assent (e)

Prime Minister and Cabinet Legislation Amendment Act 1991

199, 1991

18 Dec 1991

18 Dec 1991

Law and Justice Legislation Amendment Act (No. 4) 1992

143, 1992

7 Dec 1992

7 Dec 1992

S. 2(2) and (3)

Complaints (Australian Federal Police) Amendment Act 1994

166, 1994

16 Dec 1994

13 Jan 1995

S. 20

as amended by

 

 

 

 

Statute Law Revision Act 1996

43, 1996

25 Oct 1996

Schedule 3 (item 9): 16 Dec 1994 (f)

Statute Law Revision Act 1996

43, 1996

25 Oct 1996

Schedule 2 (items 32, 33): (g)
Schedule 4 (item 53) and Schedule 5 (items 42, 43): Royal Assent (g)

Law and Justice Legislation Amendment Act 1997

34, 1997

17 Apr 1997

Schedule 3: Royal Assent (h)

Sch. 3 (item 3) [see Table A]

Public Employment (Consequential and Transitional) Amendment Act 1999

146, 1999

11 Nov 1999

Schedule 1 (items 331, 332): 5 Dec 1999 (see Gazette 1999, No. S584) (i)

Australian Federal Police Legislation Amendment Act 2000

9, 2000

7 Mar 2000

2 July 2000 (see Gazette 2000, No. S328)

Sch. 3 (items 20, 22, 34, 35) [see Table A]

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000

137, 2000

24 Nov 2000

Ss. 1–3 and Schedule 1 (items 1, 4, 6, 7, 9–11, 32): Royal Assent
Remainder: 24 May 2001

Sch. 2 (items 418, 419) [see Table A]

Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001

24, 2001

6 Apr 2001

S. 4(1), (2) and Schedule 8: (v)

S. 4(1) and (2) [see Table A]

Australian Federal Police and Other Legislation Amendment Act 2004

64, 2004

22 June 2004

Schedule 2 (item 4): 1 July 2004

Migration and Ombudsman Legislation Amendment Act 2005

141, 2005

12 Dec 2005

Schedule 2 (item 1): Royal Assent


(a)     The Complaints (Australian Federal Police) Act 1981 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1984, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the twenty-eighth day after the day on which it receives the Royal Assent.

(b)    The Complaints (Australian Federal Police) Act 1981 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1984, subsection 2(8) of which provides as follows:

                 (8)   The amendments of the Complaints (Australian Federal Police) Act 1981 made by this Act shall be deemed to have come into operation on 1 January 1984.

(c)     The Complaints (Australian Federal Police) Act 1981 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1986, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(d)     The Complaints (Australian Federal Police) Act 1981 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act 1987, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(e)     The Complaints (Australian Federal Police) Act 1981 was amended by subsection 74(1) only of the Crimes Legislation Amendment Act 1991, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(f)      The Complaints (Australian Federal Police) Amendment Act 1994 was amended by Schedule 3 (item 9) only of the Statute Law Revision Act 1996, subsection 2(3) of which provides as follows:

                 (3)   Each item in Schedule 3 is taken to have commenced when the Act containing the provision amended by the item received the Royal Assent.

(g)     The Complaints (Australian Federal Police) Act 1981 was amended by Schedule 2 (items 32 and 33), Schedule 4 (item 53) and Schedule 5 (items 42, 43) only of the Statute Law Revision Act 1996, subsections 2(1) and (2) of which provide as follows:

                 (1)   Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent.

                 (2)   Each item in Schedule 2 commences or is taken to have commenced (as the case requires) at the time specified in the note at the end of the item.

         Items 32 and 33 are taken to have commenced immediately after the commencement of Schedule 2 to the Complaints (Australian Federal Police) Amendment Act 1994.

         The Complaints (Australian Federal Police) Amendment Act 1994 came into operation on 13 January 1995.

(h)     The Complaints (Australian Federal Police) Act 1981 was amended by Schedule 3 only of the Law and Justice Legislation Amendment Act 1997, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(i)      The Complaints (Australian Federal Police) Act 1981 was amended by Schedule 1 (items 331 and 332) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:

                 (1)   In this Act, commencing time means the time when the Public Service Act 1999 commences.

                 (2)   Subject to this section, this Act commences at the commencing time.

(j)      The Complaints (Australian Federal Police) Act 1981 was amended by Schedule 8 only of the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001, subsection 2(1)(a) of which provides as follows:

                 (1)   Subject to this section, this Act commences at the later of the following times:

                 (a)   immediately after the commencement of item 15 of Schedule 1 to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000;

         Item 15 commenced on 24 May 2001.


Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

Part I

 

S. 3......................................

am. No. 62, 1983; No. 122, 1985; No. 141, 1987; No. 153, 1989; No. 11, 1990; No. 166, 1994; No. 9, 2000; No. 64, 2004

S. 4......................................

am. No. 62, 1983

 

rs. No. 166, 1994

S. 5......................................

am. No. 62, 1983; No. 141, 1987; No. 166, 1994

S. 5A...................................

ad. No. 62, 1983

S. 5B...................................

ad. No. 24, 2001

Part II

 

Division 1

 

S. 6......................................

am. No. 141, 1987; No. 166, 1994; No. 9, 2000

S. 6A...................................

ad. No. 141, 1987

 

am. No. 166, 1994

S. 6B...................................

ad. No. 141, 1987

 

am. No. 166, 1994; No. 9, 2000

S. 7......................................

am. No. 122, 1985; No. 166, 1994; No. 34, 1997; No. 24, 2001

S. 8......................................

rs. No. 166, 1994

S. 9......................................

am. No. 62, 1983; No. 166, 1994

Division 2

 

S. 10....................................

am. No. 141, 1987; No. 166, 1994

S. 11....................................

am. No. 141, 1987; No. 11, 1990; No. 166, 1994

S. 11A.................................

ad. No. 122, 1985

 

am. No. 141, 1987

Ss. 12, 13............................

am. No. 141, 1987

 

rs. No. 11, 1990

 

am. No. 166, 1994

Division 3

 

Ss. 14–16............................

am. No. 166, 1994

S. 17....................................

am. No. 166, 1994; No. 43, 1996

Division 4

 

S. 18....................................

am. No. 166, 1994

S. 19....................................

am. No. 122, 1985

 

rep. No. 141, 1987

 

ad. No. 166, 1994

S. 20....................................

am. No. 166, 1994

Part III

 

Division 1

 

S. 21....................................

am. No. 62, 1983; Nos. 28 and 199, 1991; No. 166, 1994; No. 9, 2000

S. 21A.................................

ad. No. 166, 1994

S. 22....................................

am. No. 62, 1983; No. 165, 1984; No. 199, 1991; No. 143, 1992; No. 166, 1994

S. 23....................................

am. No. 199, 1991; No. 166, 1994

S. 24....................................

am. No. 62, 1983; No. 168, 1986; No. 141, 1987; No. 11, 1990; No. 199, 1991; No. 166, 1994

S. 24A.................................

ad. No. 62, 1983

 

am. No. 199, 1991; No. 166, 1994

Division 2

 

S. 25....................................

am. No. 62, 1983; No. 199, 1991; No. 166, 1994

S. 25A.................................

ad. No. 62, 1983

 

am. No. 199, 1991; No. 166, 1994 (as am. by No. 43, 1996)

S. 26....................................

am. No. 122, 1985; No. 141, 1987; No. 11, 1990; No. 199, 1991; No. 166, 1994

S. 27....................................

am. No. 62, 1983; No. 199, 1991; No. 166, 1994; No. 137, 2000

S. 27A.................................

ad. No. 199, 1991

S. 28....................................

am. No. 62, 1983

 

rs. No. 199, 1991

S. 28A.................................

ad. No. 62, 1983

 

am. No. 199, 1991

Ss. 29, 30............................

am. No. 199, 1991

S. 31....................................

am. No. 62, 1983; No. 122, 1985; No. 199, 1991; No. 166, 1994

Ss. 32, 33............................

am. No. 199, 1991

S. 34....................................

am. No. 62, 1983; No. 141, 1987; No. 199, 1991; No. 166, 1994

Division 3

 

S. 35....................................

am. No. 199, 1991

S. 36....................................

am. No. 62, 1983; No. 141, 1987; No. 11, 1990; No. 199, 1991; No. 166, 1994

S. 37....................................

am. No. 62, 1983; No. 141, 1987; No. 199, 1991; No. 166, 1994

Division 4

 

S. 38....................................

am. No. 199, 1991; No. 166, 1994; No. 141, 2005

S. 38A.................................

ad. No. 166, 1994

S. 39....................................

am. No. 62, 1983; No. 199, 1991

S. 40....................................

am. No. 62, 1983; No. 199, 1991; No. 166, 1994; No. 43, 1996

S. 41....................................

am. No. 62, 1983; No. 122, 1985; No. 199, 1991; No. 166, 1994; No. 34, 1997; No. 146, 1999

S. 41A.................................

ad. No. 62, 1983

 

am. No. 166, 1994

S. 42....................................

rep. No. 141, 1987

S. 43....................................

am. No. 199, 1991; No. 166, 1994

S. 44....................................

am. No. 62, 1983; No. 199, 1991; No. 166, 1994; No. 34, 1997; No. 137, 2000; No. 24, 2001

S. 45....................................

am. No. 62, 1983

Part IV

 

Ss. 46–48............................

am. No. 166, 1994

S. 49....................................

am. No. 141, 1987; No. 11, 1990; No. 166, 1994

Part V

 

S. 50....................................

am. No. 166, 1994; No. 34, 1997; No. 24, 2001

S. 51....................................

am. No. 166, 1994

S. 52....................................

am. No. 141, 1987; No. 11, 1990; No. 166, 1994

Part VA

 

Part VA ..............................

ad. No. 166, 1994

S. 52A.................................

ad. No. 166, 1994

S. 52B.................................

ad. No. 166, 1994

 

am. No. 9, 2000

Ss. 52C–52E.......................

ad. No. 166, 1994

Part VI

 

Division 1

 

S. 53....................................

am. No. 166, 1994; No. 9, 2000

Division 2

 

Ss. 54–57............................

am. No. 166, 1994

S. 59....................................

am. No. 166, 1994; No. 43, 1996; No. 34, 1997

S. 60....................................

am. No. 166, 1994

S. 61....................................

am. No. 166, 1994; No. 43, 1996

S. 62....................................

am. No. 166, 1994

S. 63....................................

rs. No. 166, 1994

Division 3

 

S. 64....................................

am. No. 146, 1999

Division 4

 

S. 65....................................

am. No. 166, 1994

S. 66A.................................

ad. No. 141, 1987

 

am. No. 166, 1994

S. 66B.................................

ad. No. 11, 1990

 

am. No. 166, 1994

S. 67....................................

am. No. 122, 1985; No. 141, 1987; No. 11, 1990; No. 166, 1994; No. 9, 2000

S. 68....................................

am. No. 122, 1985; No. 166, 1994

S. 69....................................

am. No. 122, 1985; No. 153, 1989; No. 166, 1994

S. 70....................................

am. No. 166, 1994

S. 71....................................

am. No. 122, 1985; No. 141, 1987; No. 166, 1994

S. 73....................................

am. No. 166, 1994

S. 74....................................

am. No. 166, 1994; No. 34, 1997

S. 75....................................

am. No. 153, 1989; No. 166, 1994; No. 43, 1996

S. 76....................................

am. No. 141, 1987

S. 77....................................

am. No. 166, 1994

Division 5

 

S. 79....................................

am. No. 122, 1985; No. 153, 1989

Division 6

 

S. 82....................................

am. No. 166, 1994; No. 43, 1996; No. 34, 1997; No. 24, 2001

S. 83....................................

am. No. 166, 1994; No. 34, 1997; No. 24, 2001

S. 84....................................

am. No. 166, 1994

S. 85....................................

am. No. 166, 1994; No. 34, 1997

S. 86....................................

am. No. 166, 1994

Part VII

 

S. 87....................................

am. No. 72, 1984; No. 153, 1989; No. 166, 1994

S. 88....................................

am. No. 166, 1994

S. 88A.................................

ad. No. 166, 1994

S. 89....................................

am. No. 166, 1994


Note 2

Subsection 7(7)—Schedule 1 of the Complaints (Australian Federal Police) Amendment Act 1994 (No. 166, 1994) provides as follows:

Schedule 1

Subsection 7(7):

                     (b)  Omit “the member of the Australian Federal Police”, substitute “the appointee”.

The proposed amendment was misdescribed and is not incorporated in this compilation.


Table A

Application, saving or transitional provisions

Law and Justice Legislation Amendment Act 1997 (No. 34, 1997)

Schedule 3

3  Saving

Any determination of, or regulation prescribing, remuneration that, immediately before the commencement of item 2, was in force for the purposes of the subsection repealed by that item continues in force as if it had been made for the purposes of the subsection substituted by that item.

 

Australian Federal Police Legislation Amendment Act 2000 (No. 9, 2000)

Schedule 3

20  Definition

In this Part:

commencing time means the time when this Part commences.

22  Amendments of the Complaints (Australian Federal Police) Act 1981

The amendments of the Complaints (Australian Federal Police) Act 1981 made by Schedule 2 to this Act apply to action taken by an AFP appointee (within the meaning of the Complaints (Australian Federal Police) Act 1981 as in force at and after the commencing time) at or after the commencing time.

34  Warrants or writs etc. may continue to be executed

If, immediately before the commencing time, any warrant, writ, order, permission or other instrument (the authority) issued under a law of the Commonwealth, a State or a Territory could be executed by a person who was at that time a member, staff member or special member of the Australian Federal Police, the authority continues to be able to be executed at and after the commencing time by the person in his or her capacity as:

                     (a)  the Commissioner of the Australian Federal Police; or

                     (b)  a Deputy Commissioner of the Australian Federal Police; or

                     (c)  an AFP employee; or

                     (d)  a special member of the Australian Federal Police;

(all within the meaning of the Australian Federal Police Act 1979 as in force at and after the commencing time).

Note:          A person who is a member or staff member of the Australian Federal Police immediately before the commencing time is taken to be engaged as an AFP employee. Similarly, a person who is a special member of the Australian Federal Police immediately before the commencing time is taken to be appointed as a special member. See item 2 of this Schedule.

35  Regulations dealing with matters of a transitional or saving nature

(1)        The Governor-General may make regulations, not inconsistent with any other provision of this Schedule, prescribing matters of a transitional or saving nature in relation to the amendments made by Schedule 1 or 2.

(2)        Regulations made under this item within one year after the commencement of this item may commence on a day earlier than the day on which they are made, but not earlier than the commencement of this item.

 

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (No. 137, 2000)

Schedule 2

418  Transitional—pre-commencement offences

(1)        Despite the amendment or repeal of a provision by this Schedule, that provision continues to apply, after the commencement of this item, in relation to:

                     (a)  an offence committed before the commencement of this item; or

                     (b)  proceedings for an offence alleged to have been committed before the commencement of this item; or

                     (c)  any matter connected with, or arising out of, such proceedings;

as if the amendment or repeal had not been made.

(2)        Subitem (1) does not limit the operation of section 8 of the Acts Interpretation Act 1901.

419  Transitional—pre-commencement notices

If:

                     (a)  a provision in force immediately before the commencement of this item required that a notice set out the effect of one or more other provisions; and

                     (b)  any or all of those other provisions are repealed by this Schedule; and

                     (c)  the first-mentioned provision is amended by this Schedule;

the amendment of the first-mentioned provision by this Schedule does not affect the validity of such a notice that was given before the commencement of this item.

 

Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (No. 24, 2001)

4  Application of amendments

             (1)  Subject to subsection (3), each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

             (2)  For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment