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AUSTRALIAN FEDERAL POLICE REGULATIONS (AMENDMENT) 1992 NO. 298
EXPLANATORY STATEMENTSTATUTORY RULES 1992 No. 298
Issued by the authority of the Minister for Justice
Australian Federal Police Act 1979
Australian Federal Police Regulations (Amendment)
The purpose of the amendments is to introduce a new promotion appeal scheme into the regulations to allow members to appeal against the promotion of staff members, and staff members to appeal against the promotion of members, where member and staff member positions have been jointly advertised with the intention that only one position be filled. This initiative is being introduced as part of the unified workforce policy of the Australian Federal Police (AFP) and follows the introduction of a similar scheme into the Act in relation to non-appellable promotions.
In addition to the new promotion appeal scheme, other amendments assist in standardising the conditions for members and staff members in line with the AFP's unified workforce policy. Examples include amendments which:
• ensure that the period of probation is now set at the rate of 12 months for both members and staff members;
• provide that it is no longer be possible to direct staff members to act in a position in a partial capacity only;
• allow staff members to resign for the purposes of becoming a candidate at an election and to provide for re-appointment of unsuccessful candidates;
• provide for the return of property by a person who ceased to be a staff member, as is the case with members; and
• allow the Commissioner to delegate his powers to staff members as well as to members as is currently the case.
The amending regulations also make minor amendments, corrections and consequential amendments to the regulations. These include standardising the numbering of the Parts, updating various definitions and provisions to reflect amendments to the Act or to correct omissions, and ensuring references to the new promotion appeal provisions are made in the appropriate regulations.
The details of the proposed amendments are as follows:
Regulation 1 provides that the regulations are amended.
Regulation 2 changes the numbering of Part 1 to arabic numerals to ensure consistency throughout the regulations.
Regulation 3 makes consequential amendments to the definitions of "commissioned officer" and "non-commissioned officer" to reflect amendments to section 6 of the Act concerning the ranks which constitute the members of the AFP.
Regulation 4 changes the numbering of Part II to arabic numerals to ensure consistency throughout the regulations, and also makes amendments to the heading to reflect that this Part applies to staff members as well as to members.
Regulation 5 amends regulation 13 to ensure that its provisions apply to a new subsection 28(2A) which has been inserted into the Act, concerning oaths to be taken by a person appointed as a Deputy Commissioner.
Regulation 6 amends subregulations 14(2) and (3) to standardise the period of probation and any extensions of this period to 12 months for both members and staff members, consistent with the AFP's unified workforce policy. The substituted subregulation 14(2AA) makes drafting changes, but no changes of substance to the Commissioner's power to reduce or waive the period of probation in a particular case.
Regulation 7 amends regulation 14B to remove a reference to regulation 15C which has been repealed, to apply the provision to staff members, and to reword the heading so it reflects that the provision concerns applicable salary rates when members and staff members are appointed on probation, rather than the appointments themselves.
Regulation 8 makes an amendment to regulation I4J, which defines "appeal" in relation to certain sections of Part 2A, to apply the definition to the new regulations 25CA and 25CB (which are to be inserted by amending regulation 22).
Regulation 9 amends subregulations 14N(1) and (2) to ensure that the provisions of this regulation, which concern procedures for hearings by Appeal Committees, apply to appeals against directions to staff members to act (under regulation 18C) and to promotion appeals (under Division 2A of Part 3) as well as to retirement appeals (under section 38E of the Act). It also makes drafting changes to subregulation 14N(3) and amends subregulations 14N(6) and (7) to omit the unnecessary words "as the case may be".
Regulation 10 amends subregulation l4Q(1) to ensure this provision, which directs the Appeal Committee to hold its hearings in private, applies to all promotion appeals by both members and staff members as well as to appeals by staff members against directions to act.
Regulation 11 amends the heading of Part 3 so it accurately reflects the provisions of the Part.
Regulation 12 amends regulation 15B to remove the definitions of "relevant association" and "relevant staff association" as all members and staff members are now represented by the Australian Federal Police Association (which is defined as the "association" in the definition section). As a consequence of this, regulation 12 makes amendments to certain paragraphs to to apply the definition of "association". Regulation 12 also amends subparagraph 15B(2)(a)(iii) to include a reference to the requirements necessary to hold a staff member position. This amendment ensures that subregulation 15B(2), concerning the establishment of a joint selection committee, applies to staff members as well as to members, as currently the provision only refers to the requirements relevant to members. Finally, an amendment to subregulation 15B(8), which provides that appeals are not possible from decisions of joint selection committees, inserts a reference to the new promotion provisions which will be inserted by amending regulation 22 to ensure they are covered by this provision.
Regulation 13 repeals and reinserts regulation 18 which is an interpretation provision for Division 1B of Part 3. Regulation 18 was originally inserted by Statutory Rule 361 of 1989. Statutory Rule 362 of 1989 intended to repeal the old regulation 18, however, as it commenced after Statutory Rule 361 it might be possible to argue that the new regulation 18 was repealed. For the sake of certainty it has been reinacted.
Regulation 14 amends regulation 18A, which concerns directions to act to staff members, so that they now only be able to he directed to perform all the duties of a position within the AFP.
It is therefore no longer be possible to be direct staff members to perform part only of the duties of a particular position. This amendment brings staff members into line with members, which is consistent with the AFP's unified workforce policy. Regulation 14 also omits subregulation 18A(7), concerning revocation or variation of directions, which is superfluous as the Commissioner has these powers under section 33 of the Acts Interpretation Act 1901.
Regulation 15 makes amendments to regulation 18C, the appeal provision against selection of staff members for directions to act. The amendments make no substantive changes to the provision but effect drafting changes which are intended to make the provision clearer and correct some numbering errors in subregulations 18C(6) and (7).
Regulation 16 makes amendments to regulation 19, the interpretation provision of Division 2 of Part 3, to ensure that the definitions of "notification" and "relevant day" extend to staff members, as is the intention of the Division. It also inserts a provision which relates to the new regulations 25CA and 25CB and provides that the reference to appointments in the new regulations 25CA(1) and 25CB(1) is taken to be a promotion. This is to ensure that all appointments are not appellable, only those were a member is promoted to a staff member position (and therefore has to be appointed to the new stream of employment) and vice versa where a staff member is appointed to a member position.
Regulation 17 amends regulation 20 to provide that appointments, as well as promotions or transfers, must be notified in the Police Gazette, as is currently AFP practice.
Regulation 18 amends regulation 22, concerning cancellation of promotions, to correct a typing error.
Regulation 12 amends regulation 23, which relates to concurrent promotions, to ensure that the provision applies to staff members as well as to members. It also inserts a reference to the new promotion appeal regulations 25CA and 25CB, so this provision apply to these new appeals.
Regulation 20 amends regulation 24A, concerning entitlement to payment of salary on promotion, to ensure that its provisions apply to the new promotion appeal regulations 25CA and 25CB.
Regulation 21 amends regulation 25A, the interpretation provision for the Division, to provide that in the context of the proposed new subregulations 25CA(1) and 25CB(1) the reference to appointments in those provisions is taken to be a promotion. This is to ensure that all appointments are not appellable, only those were a member is promoted to a staff member position (and therefore has to be appointed to the new stream of employment) and vice versa where a staff member is appointed to a member position.
Regulation 22 inserts new regulations 25CA, 25CB and 25CC which provides for appeal rights where two positions, one a member position and one a staff member position, are advertised jointly with the intention that only one position be filled.
The amendments allow members and staff members to appeal against the promotion of a person to a position other than the one they applied for provided the positions were advertised jointly, and the appellant applied for one of the positions.
Specifically, proposed new regulation 25CA allow members to appeal against:
• the appointment of a staff member to a member position at the rank of sergeant; or
• the promotion of a staff member to a staff member position at level 3.
Similarly, proposed new regulation 25CB allow staff members to appeal against:
• the appointment of a member to a position of staff member at level 3; or
• the promotion of a member to a member position at the rank of sergeant.
This regulation also inserts a new regulation 25CC which provides for notices of appeals under the new provisions to be given to the Merit Protection and Review Agency (MPRA) and applies the procedural provisions of regulation 26 (which relate to general appeals) to these appeals.
Regulation 23 amends regulation 26, concerning general appeals against promotions, by removing the requirement that the person appealing must consider that they have a better claim to the promotion, as this is unnecessary. The amendment also clarifies subregulation 26(2) by specifying that notices of appeal must he addressed to the MPRA.
Regulation 24 makes minor consequential amendments to regulation 27, which concerns notification of appeals, by inserting references to the new regulations 25CA and 25CB to ensure this regulation applies to the new appeals.
Regulation 25 makes minor consequential amendments to regulation 31, which concerns the powers of the Appeal Committee, by inserting references to the new regulations 25CA and 25CB to ensure this regulation applies to the new appeals.
Regulation 26 makes minor consequential amendments to regulation 32, which concerns the determination of appeals by the Appeal Committee, by inserting references to the new regulations 25CA and 25CB to ensure this regulation applies to the new appeals.
Regulation 27 makes amendments to r 33A, which currently prescribes die ranks of members to which promotions are non-appellable for the purposes of sections 36B and 36C of the Act, by prescribing the levels in relation to staff members to which non-appellable promotions apply.
Regulation 28 amends the heading of Part 3A to remove the reference to redeployment, as appeals are now only possible in respect of retirement decisions.
Regulation 29 changes the numbering of Part IV to arabic numerals to ensure consistency throughout the regulations.
Regulation 30 amends regulation 37 to renumber the forms prescribed in relation to paragraph 12G(8)(b) of the Act so they appear in numerical order.
Regulation 31 changes the numbering of Part V to arabic numerals to ensure consistency throughout the regulations.
Regulation 32 amends regulation 39AA to prescribe certain organisations for the purposes of paragraph 34(1)(b) of the Act which provides for special leave of absence to be granted by the Commissioner. It also inserts new regulation 39AB which prescribes the Intellectual Disability Access Program for the purposes of section 36A(4)(b) of the Act.
Regulation 33 amends subregulation 40A(3) concerning voluntary retirement to correct an error which excluded staff members from its provisions.
Regulation 34 amends regulation 41 to allow resignation by staff members for the purposes of becoming a candidate at an election as is currently possible for members. The amendment also introduces nonsexist language into the provision.
Regulation 35 amends regulation 42, concerning the re-appointment of a person who resigned to contest an election, so its provisions apply to staff members as well as to members. The amendment also introduces non-sexist language into the provision, and updates paragraph 42(3)(a) concerning salary entitlements which are now determined by the Commissioner or by the Industrial Relations Commission.
Regulation 36 amends regulation 43, which currently concerns return of property by a person who has ceased to be a member, to include staff members within the ambit of the provision.
Regulation 37 repeals regulation 43A, concerning delegation by the Minister, as the Minister no longer makes delegations under these regulations.
Regulation 38 amends regulation 44 to allow the Commissioner to delegate his powers to staff members as well as to members, in line with the unified workforce policy.
Regulation 39 makes an amendment to subregulation 45(3), concerning disposal of unclaimed property, by inserting a reference to staff members to ensure the provision applies to them.
Regulation 40 makes a consequential amendment to regulation 49, concerning the attachment of salaries, as a result of the passing of the Superannuation Act 1990.
Regulation 41 makes an amendment to Schedule 4 to renumber the forms relating to warrants under section 12G of the Act so they are in numerical order.
Regulation 42 makes an amendment to Item 24 of Schedule 6 concerning fees payable by the public for attendances at burglar alarms. The amendment overcomes difficulties which could be encountered with the present wording of determining if an alarm is malfunctioning.
Regulation 43 makes an amendment to Item 20 of Schedule 7 concerning fees payable by Commonwealth authorities for attendances at burglar alarms. The amendment overcomes difficulties which could be encountered with the present wording of determining if an alarm is malfunctioning.