Australian Federal Police Act 1979

An Act to establish the Australian Federal Police, and for related purposes

This Act may be cited as the Australian Federal Police Act 1979.

(1) Sections 1, 2, 4 and 6, Division 1 of Part IV and sections 28 and 70 shall come into operation on the day on which this Act receives the Royal Assent.

(2) The remaining provisions of this Act shall come into operation on a date to be fixed by Proclamation.

3 Repeal

The Commonwealth Police Act 1957 is repealed.

3A Overview of Act

Constitution of the Australian Federal Police

(1) Division 1 of Part II of this Act provides that the Australian Federal Police consists of a Commissioner of Police, one or more Deputy Commissioners of Police, AFP employees, special members and special protective service officers.

Commissioner and Deputy Commissioners

(2) The Commissioner and Deputy Commissioners are appointed by the Governor‑General. Division 1 of Part III sets out matters dealing with such appointments.

AFP employees

(3) The Commissioner may engage persons as AFP employees. Division 2 of Part III covers matters to do with the employment of AFP employees. For example, it deals with the remuneration and terms and conditions of employment of AFP employees, how AFP employees can resign or retire and how the Commissioner may terminate the employment of AFP employees.

Members of the Australian Federal Police

(4) The Commissioner and any Deputy Commissioner are members of the Australian Federal Police. Under Division 2 of Part IV, the Commissioner may declare AFP employees to be members and certain members may be declared to be commissioned police officers. Under Division 1 of Part II, members provide police services and that Division also deals with powers of members.

Special members of the Australian Federal Police

(5) Under Division 3 of Part IV, the Commissioner may appoint persons as special members to assist the Australian Federal Police in carrying out its functions.

Protective service officers of the Australian Federal Police

(5A) Under Division 3A of Part IV, the Commissioner may declare AFP employees to be protective service officers. Divisions 3 and 4 of Part II deal with the powers of protective service officers.

Special protective service officers of the Australian Federal Police

(5B) Under Division 3B of Part IV, the Commissioner may appoint persons as special protective service officers to assist in performing protective service functions.

Commissioner’s command powers

(6) The Commissioner has the general administration of, and the control of the operations of, the Australian Federal Police. Part IV is mainly about the Commissioner’s command powers. For example, the Commissioner may determine the duties of AFP employees and where those duties are to be performed. Other topics covered by that Part include secondment and drug testing.

Professional standards and dealing with AFP conduct or practices issues

(6A) Part V provides for the setting of AFP professional standards and the way in which AFP conduct or practices issues are raised and dealt with.

Other matters

(7) This Act also:

(a) deals with the use of listening devices in relation to offences (see Division 2 of Part II); and

(aa) deals with the powers of protective service officers and certain other powers relating to protective service functions (see Divisions 3 and 4 of Part II); and

(b) deals with when AFP employees lose certain superannuation rights and benefits (see Part VA); and

(c) deals with other matters such as secrecy obligations, offences and certain administrative matters (all of which are contained in Part VI).

4 Interpretation

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

adjustment payment means a payment made in accordance with a determination that is continued in force by item 8 of Part 1 of Schedule 3 to the Australian Federal Police Legislation Amendment Act 2000 (including a payment made in accordance with such a determination as amended or varied in accordance with that item).

AFP appointee means:

(a) a Deputy Commissioner; or

(b) an AFP employee; or

(d) a special protective service officer; or

(e) a person engaged overseas under section 69A to perform duties overseas as an employee of the Australian Federal Police; or

(f) a person who is:

(i) engaged under section 35 as a consultant, or independent contractor, to perform services for the Australian Federal Police; and

(ii) a consultant, or independent contractor, determined by the Commissioner under subsection 35(2) to be an AFP appointee for the purposes of this paragraph; or

(g) a person who is assisting the Australian Federal Police in the performance of its functions under an agreement under section 69D.

AFP conduct issue has the meaning given by sections 40RH and 40RJ.

AFP conduct or practices issue means:

(a) an AFP conduct issue; or

(b) an AFP practices issue.

AFP employee means a person engaged under section 24.

AFP practices issue has the meaning given by section 40RI and 40RJ.

AFP professional standards means professional standards determined under Commissioner’s orders made for the purposes of section 40RC.

alcohol screening test in relation to a person, means a test of sample of the breath of the person carried out by means of an approved screening device.

approved screening device means a device of a type that is approved by the Minister under section 40R.

authority of a State or Territory means:

(a) a body, whether incorporated or unincorporated, established for a public purpose by or under a law of that State or Territory, other than a body that, under the regulations, is not to be taken to be an authority of that State or Territory for the purposes of this Act; or

(b) any other body declared by the regulations to be an authority of that State or Territory for the purposes of this Act, being:

(i) a body, whether incorporated or unincorporated, established by the Governor, or a Minister of the Crown, of that State or, in the case of the Northern Territory, a Minister; or

(ii) an incorporated company in which that State or Territory, or a body corporate falling within paragraph (a) or subparagraph (i), has a controlling interest.

authority of the Commonwealth means:

(a) a body, whether incorporated or unincorporated, established for a public purpose by or under a law of the Commonwealth, other than a body that, under the regulations, is not to be taken to be an authority of the Commonwealth for the purposes of this Act; or

(b) any other body declared by the regulations to be an authority of the Commonwealth for the purposes of this Act, being:

(i) a body, whether incorporated or unincorporated, established by the Governor‑General or by a Minister; or

(ii) an incorporated company in which the Commonwealth or a body corporate falling within paragraph (a) or subparagraph (i) of this paragraph has a controlling interest.

blood test means a test of a person’s blood to determine the amount of alcohol (if any) in the person’s blood.

body sample means any of the following:

(a) any human biological fluid;

(b) any human biological tissue (whether alive or otherwise);

breath test means a test of a person’s breath to determine the amount of alcohol (if any) in the person’s blood.

category 1 conduct has the meaning given by section 40RN.

category 1 conduct issue has the meaning given by subsection 40RL(1).

category 2 conduct has the meaning given by section 40RO.

category 2 conduct issue has the meaning given by subsection 40RL(2).

category 3 conduct has the meaning given by section 40RP.

category 3 conduct issue has the meaning given by subsection 40RL(3).

commissioned police officer means any member in respect of whom a declaration under section 40D is in force.

Commissioner means the Commissioner of Police referred to in section 6.

Commissioner’s Orders means orders under section 38.

complainant has the meaning given by subsection 40SA(3).

corrupt conduct: see engages in corrupt conduct.

corruption issue has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006.

CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011.

Deputy Commissioner means a Deputy Commissioner of Police referred to in section 6.

duties includes responsibilities.

eligible employee has the same meaning as in the Superannuation Act 1976.

engages in corrupt conduct has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006.

federal aspect, in relation to an offence against a law of a State or of the Australian Capital Territory, has the meaning given by subsection 4AA(1).

Note: This subsection defines State to include the Northern Territory.

Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013.

frisk search means:

(a) a search of a person conducted by quickly running the hands over the person’s outer garments; and

(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.

give information that raises an AFP conduct or practices issue has a meaning affected by subsection (3).

IGIS official means:

(a) the Inspector‑General of Intelligence and Security; or

(b) any other person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986.

intelligence or security agency means an authority or person responsible for intelligence gathering for, or the security of, a country or a part of a country.

international organisation includes:

(a) a public international organisation within the meaning of section 70.1 of the Criminal Code; and

(b) a body (including an international judicial body):

(i) established by or under an international agreement or international arrangement or otherwise under international law; or

(ii) established by a body described in subparagraph (i); or

(iii) on which functions are conferred by or under an international agreement.

investigator for a category 3 conduct issue, or a corruption issue, means the person to whom the issue is allocated for investigation under section 40TN or 40TO.

law enforcement agency means an authority or person responsible for the enforcement of laws.

manager for a category 1 conduct issue, or category 2 conduct issue, means the person to whom the issue is allocated in accordance with Commissioner’s orders issued for the purposes of subsection 40TA(1).

member means a member of the Australian Federal Police.

member of the Australian Federal Police means any of the following:

(a) the Commissioner of Police;

(b) a Deputy Commissioner of Police;

member of the unit constituted under section 40RD means:

(a) the AFP appointee appointed as the head of that unit under section 40RE; and

(b) any member, or special member, of the Australian Federal Police assigned to that unit under section 40RF.

ordinary search means a search of a person or of articles in the possession of a person that may include:

(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and

(b) an examination of those items.

overseas means outside Australia and the Territories.

pensioner means:

(a) a person to whom an invalidity pension within the meaning of the Superannuation Act is payable;

(b) a person to whom a pension is payable under the Superannuation Act 1922 and who has been retired on the ground of invalidity or of physical or mental incapacity to perform his or her duties; or

police services includes services by way of the prevention of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or otherwise.

police support services means services related to:

(a) the provision of police services by an Australian or foreign law enforcement agency; or

(b) the provision of services by an Australian or foreign intelligence or security agency; or

powers includes authorities, rights, privileges and immunities.

practices or procedures of the Australian Federal Police has the meaning given by subsection 40RI(3).

prohibited drug means:

(a) a narcotic substance (within the meaning of the Customs Act 1901); or

(b) any drug specified in a determination under section 4A.

prohibited drug test means a test of a body sample of a person to determine the presence (if any) of a prohibited drug in the sample.

protective service functions means the functions designated by the Minister under section 8A.

protective service offence means any of the following:

(a) an offence in relation to a person, place or thing in respect of which the Australian Federal Police is performing protective service functions, being an offence under:

(i) subsection 3UU(1) or section 46, 47, 47A, 89 or 89A of the Crimes Act 1914; or

(ii) the Crimes (Internationally Protected Persons) Act 1976 or Part 2 of the Crimes (Aviation) Act 1991; or

(iia) Division 82 of the Criminal Code (sabotage); or

(iib) Division 91 of the Criminal Code (espionage); or

(iic) Part 5.6 of the Criminal Code (secrecy); or

(iid) section 132.8A of the Criminal Code (damaging Commonwealth property); or

(iii) the Defence (Special Undertakings) Act 1952 (other than subsection 31(2)); or

(iiia) an offence against section 71V, 71W or 72P of the Defence Act 1903; or

(iv) the Public Order (Protection of Persons and Property) Act 1971 (other than section 11); or

(v) the Nuclear Non‑Proliferation (Safeguards) Act 1987 (other than section 25A, 27 or 28A, subsection 29(2), 29A(1), 30(1), 40(1), 58(2) or 65(1) or section 66); or

(va) the Aviation Transport Security Act 2004 or regulations made under that Act;

(b) an offence against section 6 of the Crimes Act 1914, or section 11.1 or 11.4 of the Criminal Code, that relates to an offence mentioned in paragraph (a);

(c) an offence against Subdivision A of Division 72 of the Criminal Code that relates to a person, place or thing in respect of which the Australian Federal Police is performing protective service functions;

(d) an offence against Division 101 of the Criminal Code that relates to a person, place or thing in respect of which the Australian Federal Police is performing protective service functions;

(e) an offence in relation to a person, place or thing in respect of which the Australian Federal Police is performing protective service functions, being an offence against section 131.1, 141.1, 142.1, 147.1, 148.1 or 149.1 of the Criminal Code.

protective service officer means an AFP employee in respect of whom a declaration under section 40EA is in force.

regulatory agency means an authority or person who performs regulatory functions for a country or part of a country.

remedial action has the meaning given by section 40TD.

resign means resign from the Australian Federal Police.

retire means retire from the Australian Federal Police.

senior executive AFP employee means an AFP employee in respect of whom a declaration under section 25 is in force.

serious misconduct has the meaning given by section 40K.

special member means a person appointed under section 40E.

special protective service officer means a person appointed under section 40EC.

State includes the Northern Territory.

Superannuation Act means the Superannuation Act 1976 or the Superannuation Act 1990.

termination action has the meaning given by section 40TE.

training and development action has the meaning given by section 40TC.

(2) A reference in this Act to an officer of police shall be read as including a reference to a police officer, or to any member of a police force, however described.

(3) A reference in Part V to giving information that raises an AFP conduct or practices issue includes a reference to making a complaint or report that raises an AFP conduct or practices issue.

4AA State offences that have a federal aspect

Object

(1A) The object of this section is to identify State offences that have a federal aspect because:

(a) they potentially fall within Commonwealth legislative power because of the elements of the State offence; or

(b) they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or

(c) the Australian Federal Police investigating them is incidental to the Australian Federal Police investigating an offence against a law of the Commonwealth or a Territory.

State offences that have a federal aspect

(1) For the purposes of this Act, a State offence has a federal aspect if, and only if:

(a) both:

(i) the State offence is not an ancillary offence; and

(ii) assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or

(b) both:

(i) the State offence is an ancillary offence that relates to a particular primary offence; and

(ii) assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or

(c) assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence—that provision would have been a valid law of the Commonwealth; or

(d) both:

(i) the Australian Federal Police is investigating an offence against a law of the Commonwealth or a Territory; and

(ii) if the Australian Federal Police is investigating, or were to investigate, the State offence—that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i).

Specificity of acts or omissions

(2) For the purposes of paragraph (1)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).

State offences covered by paragraph (1)(c)

(3) A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence:

(a) affects the interests of:

(i) the Commonwealth; or

(ii) an authority of the Commonwealth; or

(iii) a constitutional corporation; or

(b) was engaged in by a constitutional corporation; or

(d) involved the use of a postal service or other like service; or

(e) involved an electronic communication; or

(f) involved trade or commerce:

(i) between Australia and places outside Australia; or

(ii) among the States; or

(iii) within a Territory, between a State and a Territory or between 2 Territories; or

(g) involved:

(i) banking (other than State banking not extending beyond the limits of the State concerned); or

(ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or

(h) relates to a matter outside Australia; or

(i) relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or

(j) relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.

(4) Subsection (3) does not limit paragraph (1)(c).

Definitions

(5) In this section:

ancillary offence, in relation to an offence (the primary offence), means:

(a) an offence of conspiring to commit the primary offence; or

(b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or

authority of the Commonwealth has the same meaning as in section 3AA of the Crimes Act 1914.

Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.

conduct has the same meaning as in the Criminal Code.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

electronic communication means a communication of information:

(a) whether in the form of text; or

(b) whether in the form of data; or

(d) whether in the form of visual images (animated or otherwise); or

(e) whether in any other form; or

(f) whether in any combination of forms;

by means of guided and/or unguided electromagnetic energy.

engage in conduct has the same meaning as in the Criminal Code.

State includes the Australian Capital Territory and the Northern Territory.

State offence means an offence against a law of a State.

4A Commissioner may specify prohibited drugs

The Commissioner may, by written determination, specify drugs for the purposes of the definition of prohibited drug in section 4.

5 References in other laws

(1) In a law of the Commonwealth or of the Australian Capital Territory:

(a) a reference to a Commonwealth Police Officer shall be read as a reference to a member of the Australian Federal Police;

(b) a reference to the Commonwealth Police Force shall be read as a reference to the Australian Federal Police;

(d) a reference to an officer of police of that Territory shall be read as a reference to a member of the Australian Federal Police; and

(e) a reference to the Commissioner of Police of that Territory, however described, shall be read as a reference to the Commissioner.

(1A) Where a reference in a law of the Commonwealth that does not specify the Australian Capital Territory is, in effect, a reference to, or a reference that includes, that Territory, that reference shall, for the purposes of subsection (1), be taken to be a reference to that Territory.

(2) If:

(a) a provision of a law is, by virtue of subsection (1), to be read as referring to a member of the Australian Federal Police holding a particular rank; and

(b) a declaration is in force under subsection (3) that a member is of that rank for the purposes of this paragraph;

the provision of the law is to be read as referring to the member to whom the declaration applies.

(3) The Commissioner may, by writing, declare that a member is of a particular rank for the purposes of paragraph (2)(b).

5A Application and extension of Act and regulations

(1) This Act and the regulations apply throughout the whole of Australia and also outside Australia.

(2) This Act and the regulations extend to the external Territories.

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 II—Constitution, functions and powers of the Australian Federal Police

Division 1—Constitution, functions and laws conferring powers on members etc.

6 Constitution of the Australian Federal Police

(1) The Australian Federal Police consists of:

(a) the Commissioner of Police; and

(b) any Deputy Commissioner of Police; and

(d) special members; and

(e) special protective service officers.

(2) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):

(a) the Australian Federal Police is a listed entity; and

(b) the Commissioner of Police is the accountable authority of the Australian Federal Police; and

(d) the purposes of the Australian Federal Police include the functions of the Australian Federal Police referred to in section 8.

8 Functions

(1) The functions of the Australian Federal Police are:

(a) subject to subsection (1A), the provision of police services in relation to the Australian Capital Territory; and

(aa) the provision of police services in relation to the Jervis Bay Territory; and

(b) the provision of police services in relation to:

(i) laws of the Commonwealth;

(ii) property of the Commonwealth (including Commonwealth places) and property of authorities of the Commonwealth; and

(iii) the safeguarding of Commonwealth interests; and

(baa) the investigation of State offences that have a federal aspect; and

(ba) the provision of services in accordance with arrangements entered into under subsection (1C) and doing anything else included in the arrangements that is incidental or conducive to the provision of the services; and

(bb) to perform the functions conferred by the Witness Protection Act 1994; and

(bc) to perform the functions conferred by a law of a State or Territory that is a complementary witness protection law for the purposes of the Witness Protection Act 1994; and

(bd) to perform functions under the Proceeds of Crime Act 2002; and

(be) to perform such protective and custodial functions as the Minister directs by notice in writing in the Gazette, being functions that relate to a person, matter or thing with respect to which the Parliament has legislative power; and

(bf) the provision of police services and police support services for the purposes of assisting, or cooperating with, an Australian or foreign:

(i) law enforcement agency; or

(ii) intelligence or security agency; or

(iii) government regulatory agency; and

(bg) the provision of police services and police support services in relation to establishing, developing and monitoring peace, stability and security in foreign countries; and

(bh) to assist or cooperate with:

(i) an international organisation; or

(ii) a non‑governmental organisation, in relation to acts, omissions, matters or things outside Australia;

in relation to the provision of police services or police support services; and

Note: For State offences that have a federal aspect, see section 4AA.

(1A) The Minister and the Australian Capital Territory may enter into arrangements for the provision of the police services in relation to the Australian Capital Territory that are in respect of Territory functions as defined by section 3 of the A.C.T. Self‑Government (Consequential Provisions) Act 1988, and, where the arrangements have been entered into, the provision of those services shall be in accordance with the arrangements.

(1B) The Minister shall try to enter into the first such arrangement before 1 July 1990.

(1C) The Minister may enter into an arrangement with:

(a) the Minister administering the Department that deals with the administration of an external Territory; or

(b) the Administrator (if any) of an external Territory;

for the provision of police services and regulatory services for that Territory.

(1D) The provision of police services and regulatory services in an external Territory must be in accordance with any arrangements in force under subsection (1C) for the Territory.

(2) The provision of police services in relation to a Commonwealth place in a State, being services by way of the investigation of offences against the laws of that State having application in relation to that place by virtue of the Commonwealth Places (Application of Laws) Act 1970, shall be in accordance with arrangements made between the Commissioner and the Commissioner of Police (however designated) of that State.

(2B) Arrangements for the provision of services under subsection (1A) or (1C) may include arrangements for the doing of anything incidental or conducive to the provision of the services.

(3) In this section:

Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.

8A Minister may direct which functions are protective service functions

The Minister may, by notice published in the Gazette, direct that certain protective and custodial functions of the Australian Federal Police are protective service functions.

9 Laws conferring powers on members

(1) In addition to any other powers and duties, a member has:

(a) the powers and duties that are conferred or imposed by or under a law of the Commonwealth on:

(i) a constable; or

(ii) a constable of a particular rank, if a declaration under subsection (2A) is in force that the member is of that rank for the purposes of this subparagraph; and

(b) when performing functions in the Australian Capital Territory—the powers and duties conferred or imposed on a constable or on an officer of police by or under any law (including the common law) of the Territory; and

(ba) when performing functions in the Jervis Bay Territory—the powers and duties conferred or imposed on a constable or an officer of police by or under any law (including the common law) of the Territory; and

(bb) when performing functions in an External Territory—the powers and duties conferred or imposed on a constable or an officer of police by or under any law (including the common law) of the Territory; and

(bc) when performing functions in the Northern Territory:

(i) the powers and duties conferred or imposed on a constable or an officer of police by or under any law (including the common law) of the Territory; and

(ii) any powers and duties conferred on the member by virtue of his or her appointment as a Special Constable of the Police Force of the Northern Territory by or under a law of the Territory; and

(i) the laws of the Commonwealth;

(ii) matters in connection with property of the Commonwealth or of an authority of the Commonwealth;

(iii) matters arising on or in connection with land or premises owned or occupied by the Commonwealth or an authority of the Commonwealth;

(iv) the safeguarding of Commonwealth interests;

(iva) the investigation of State offences that have a federal aspect;

the powers and duties that are conferred or imposed, in the place in which the member is acting, on:

(v) a constable or an officer of police; or

(vi) a constable, or an officer of police, of a particular rank, if a declaration under subsection (2B) is in force that the member is of that rank for the purposes of this subparagraph.

(2) Where any provisions of a law of a State apply in relation to offences against the laws of the Commonwealth or of a Territory, those provisions so apply as if:

(a) any reference in those provisions to a constable or to an officer of police included a reference to a member; and

(b) if a declaration is in force under subsection (2B) that a member is of a particular rank for the purposes of this paragraph—any reference in those provisions to an officer of police of that rank included a reference to the member.

(2A) The Commissioner may, by writing, declare that a member is of a particular rank for the purposes of subparagraph (1)(a)(ii).

(2B) The Commissioner may, by writing, declare that a member is of a particular rank (the State law rank) for the purposes of subparagraph (1)(c)(vi) or paragraph (2)(b) if:

(a) a declaration is in force under subsection (2A) that the member is of a particular rank (the Commonwealth law rank); and

(b) the Commissioner considers the State law rank is equivalent to the Commonwealth law rank.

(2C) Unless it ceases to be in force sooner, a declaration under subsection (2B) ceases to be in force when the declaration under subsection (2A) ceases to be in force.

(3) In paragraph (1)(a):

constable includes a member of the Police Force of a State or Territory.

10 Appointment of members to other Police Forces

Nothing in this Act is intended to prevent a member or special member from being appointed (including at a particular rank) as:

(a) a member, however described, of the police force of a State or Territory; or

(b) a special constable, however described, of the police force of a State or Territory; or

11 State and Territory writs and warrants

Where a writ or warrant is issued under the law of a State or Territory in relation to an offence or other matter under a law of the Commonwealth or of a Territory, the writ or warrant may be executed by a member, notwithstanding that it is not addressed to a member and notwithstanding any requirement of the law of the State or Territory as to the person by whom it may be executed.

12 Immunities from certain State and Territory laws

The Commissioner, a Deputy Commissioner or an AFP employee is not required under, or by reason of, a law of a State or Territory:

(a) to obtain or have a licence or permission for doing any act or thing in the exercise of his or her powers or the performance of his or her duties as the Commissioner, a Deputy Commissioner or an AFP employee; or

(b) to register any vehicle, vessel, animal or article belonging to the Commonwealth.

12A Immunity from State and Territory laws in relation to entry etc. of police dogs on premises etc.

(1) In this section:

AFP dog means a police dog or a protective service dog that is used by the Australian Federal Police.

AFP dog handler means a member or a protective service officer whose duties as a member or a protective service officer include the duties of an AFP dog handler.

protective service dog means a dog used or trained to assist protective service officers.

(2) Where an AFP dog handler is entitled to enter, or to be on or in, particular premises or a particular place in the performance of the AFP dog handler’s duties as a member or a protective service officer, the AFP dog handler is entitled, in entering, or being on or in, the premises or place, to be accompanied by an AFP dog under the control of the AFP dog handler.

(3) The Commonwealth, a member or a protective service officer is not subject to any penalty, liability or forfeiture by reason only of an AFP dog having entered, or having been on or in, particular premises or a particular place if:

(a) the AFP dog is under the control of an AFP dog handler;

(b) the AFP dog handler is performing the AFP dog handler’s duties as a member or protective service officer; and

(4) In any proceeding, a certificate in writing signed by the Commissioner certifying that:

(a) a specified member or specified protective service officer is, or was at a specified time, an AFP dog handler within the meaning of this section; or

(b) a specified dog is, or was at a specified time, an AFP dog within the meaning of this section;

is prima facie evidence of the fact or facts certified.

Division 3—Powers and duties of protective service officers

14A Powers of arrest

A protective service officer may, without warrant, arrest a person for a protective service offence if the protective service officer believes on reasonable grounds that:

(a) the person has just committed, or is committing, the offence; and

(b) the arrest of the person is necessary for the purpose of:

(i) ensuring the appearance of the person before a court of competent jurisdiction for the offence; or

(ii) preventing the continuation of, or a repetition of, the offence or the commission of a further protective service offence; or

(iii) preventing the concealment, loss or destruction of evidence of, or relating to, the offence; or

(iv) preserving the safety or welfare of the person; and

14B Use of force in making arrest etc.

(1) A protective service officer must not, in arresting or attempting to arrest a person for an offence or in preventing a person who has been arrested for an offence from escaping, use more force, or subject the person to greater indignity, than is reasonable and necessary in order to make the arrest or prevent the escape of the person.

(2) Without limiting the generality of subsection (1), a protective service officer must not, in arresting or attempting to arrest a person for an offence or in preventing a person who has been arrested for an offence from escaping, do an act likely to cause death or grievous bodily harm to the person unless the officer believes on reasonable grounds that the doing of the act is necessary to protect life or prevent serious injury to the officer or any other person.

14C Arrested person to be informed of grounds of arrest

(1) A protective service officer who arrests a person for an offence must inform the person, at the time of the arrest, of the offence for which the person is arrested.

(2) It is sufficient compliance with subsection (1) if the protective service officer informs the person of the substance of the offence, and it is not necessary to do so in language of a precise or technical nature.

(3) Subsection (1) does not apply to the arrest by a protective service officer of a person for an offence if the person, by his or her own actions, makes it impracticable for the protective service officer to inform the person of the offence.

(4) Where a protective service officer who arrests a person for an offence believes or has reasonable grounds for believing that the person is unable, by reason of inadequate knowledge of the English language or any physical or mental disability, to understand the substance of the offence for which the person is arrested, the protective service officer must, as soon as practicable, take all reasonable steps to ensure that the person is provided with an explanation of the substance of the offence that the person is able to understand.

14D Search of arrested person

(1) A protective service officer may, upon lawfully arresting a person for an offence:

(a) conduct an ordinary search or a frisk search of the person; and

(b) search the clothing that the person is wearing and any vessel, vehicle or other property under the person’s immediate control if the officer believes on reasonable grounds that it is necessary to do so;

for the purpose of:

(c) ascertaining whether there is concealed on the person, in the clothing or in the property, a weapon or other thing capable of being used to inflict bodily injury or to assist the person to escape from custody; or

(d) preventing the concealment, loss or destruction of evidence of, or relating to, the offence.

(2) If the protective service officer is not of the same sex as the arrested person, an ordinary search or a frisk search of the arrested person for the purposes of subsection (1) may be conducted by:

(a) if a protective service officer, a member or a special member of the same sex as the arrested person is reasonably available to conduct the search—that protective service officer, member or special member; or

(b) if paragraph (a) does not apply but a police officer or an officer of Customs (within the meaning of subsection 4(1) of the Customs Act 1901) who is of the same sex as the arrested person is reasonably available to conduct the search—that police officer or officer of Customs; or

(c) otherwise—any other person who is of the same sex as the arrested person and who is requested by the protective service officer to conduct the search.

(3) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of a protective service officer, conducts a search under this section if the person acts in good faith and does not contravene subsection (4).

(4) A protective service officer or other person who conducts a search under this section must not use more force, or subject an arrested person to greater indignity, than is reasonable and necessary in order to conduct the search.

(5) A protective service officer or other person who lawfully conducts a search under this section may seize:

(a) any weapon or thing mentioned in paragraph (1)(a); or

(b) anything that the officer or other person has reasonable grounds to believe is a thing:

(i) with respect to which an offence has been committed; or

(ii) that will afford evidence of the commission of an offence; or

(iii) that was used, or intended to be used, for the purpose of committing an offence.

14E How arrested person to be dealt with

(1) A protective service officer who arrests a person for an offence must ensure that the person is delivered into the custody of a police officer as soon as practicable to be dealt with according to law.

(2) Where a weapon or other thing has been seized from the person under subsection 14D(5), the protective service officer must ensure that the weapon or other thing is delivered to the police officer into whose custody the person is delivered.

(3) In this section:

police officer means:

(a) a member or special member; or

(b) a member, however described, of a police force of a State or Territory; or

14F Release of arrested person

Where:

(a) a person has been arrested by a protective service officer for an offence; and

(b) the person is in the custody of the protective service officer or another protective service officer; and

(i) ceases to have reasonable grounds for believing that the person committed, or was committing, an offence; or

(ii) ceases to have reasonable grounds for believing that the holding of the person in custody is necessary in order to achieve a purpose mentioned in paragraph 14A(b), and does not have reasonable grounds for believing that the holding of the person in custody is necessary in order to achieve any other purpose mentioned in that paragraph; or

(iii) ceases to have reasonable grounds for believing that proceedings by way of summons against the person for the offence would not achieve a purpose mentioned in paragraph 14A(b), and does not have reasonable grounds for believing that proceedings by way of summons against the person for the offence would not achieve any other purpose mentioned in that paragraph;

the protective service officer must release the person from custody in respect of the offence as soon as practicable.

14G Relationship of Division to other laws

(1) The power of arrest conferred by section 14A on protective service officers is in addition to, and not in derogation of, powers of arrest available to protective service officers under any other law of the Commonwealth or the law of a State or Territory.

(2) Subject to subsection (3), where a protective service officer, in the course of his or her duties as a protective service officer, arrests a person for any offence (whether the arrest is made under section 14A, under any other law of the Commonwealth or under the law of a State or Territory), sections 14B to 14F apply in relation to the arrest despite any other law of the Commonwealth or the law of a State or Territory.

(3) Subsection (2) has effect subject to sections 252 and 253 of the Migration Act 1958.

(4) Subject to subsection (2), the powers conferred, and duties imposed, by this Division on protective service officers are in addition to, and not in derogation of, any other powers conferred, or duties imposed, by any other law of the Commonwealth or the law of a State or Territory, and this Division is not intended to exclude or limit the operation of any other law of the Commonwealth or the law of a State or Territory providing for such powers or duties in so far as it is capable of operating concurrently with this Division.

(5) This Division, in so far as it protects the individual, is in addition to, and not in derogation of, any rights and freedoms of the individual, whether under the law of the Commonwealth or of a State or Territory, and this Division is not intended to exclude or limit the operation of any law of the Commonwealth or of a State or Territory providing for those rights and freedoms in so far as it is capable of operating concurrently with this Division.

Division 4—Powers and duties of members, special members and protective service officers relating to protective service functions

14H Definitions

In this Division:

designated person means:

(a) a member or special member; or

(b) a protective service officer.

police officer means:

(a) a member or special member; or

(b) a member, however described, of a police force of a State or Territory; or

vehicle includes any means of transport (and, without limitation, includes a vessel and an aircraft).

14I Requirement to provide name etc.

(1) If:

(a) a designated person suspects on reasonable grounds that a person (the suspect) might have just committed, might be committing, or might be about to commit, a protective service offence; and

(b) the suspect is in a place, or in the vicinity of a place, person or thing, in respect of which the Australian Federal Police is performing protective service functions;

the designated person may request the suspect to provide to the designated person:

(d) the suspect’s residential address; and

(e) the suspect’s reason for being in the place, or in the vicinity of the place, person or thing, in respect of which the Australian Federal Police is performing protective service functions; and

(f) evidence of the suspect’s identity.

(2) If a designated person:

(a) makes a request under subsection (1); and

(b) informs the suspect of the designated person’s authority to make the request; and

the suspect must not:

(d) fail to comply with the request; or

(e) give a name or address that is false in a material particular.

Penalty: 20 penalty units.

Note: A more serious offence of obstructing a Commonwealth public official may also apply (see section 149.1 of the Criminal Code).

(3) Subsection (2) does not apply if the suspect has a reasonable excuse.

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

14J Stopping and searching

When this section applies

(1) This section applies if a designated person suspects on reasonable grounds that:

(a) a person (the suspect):

(i) has a thing under the suspect’s immediate control; or

(ii) is occupying a thing; or

(iii) has a thing in a vehicle operated or occupied by the suspect; or

(iv) has brought a thing onto premises at which the Australian Federal Police is performing protective service functions; and

(b) the thing is likely to cause, or is likely to be used by the suspect or another to cause:

(i) substantial damage to a place or a thing in respect of which the Australian Federal Police is performing protective service functions; or

(ii) death or serious harm to a person in respect of whom the Australian Federal Police is performing protective service functions;

in circumstances that would be likely to involve the commission of a protective service offence.

Designated person may stop and search suspect

(2) The designated person may:

(a) stop and detain the suspect for the purpose of searching for the thing; and

(b) do any or all of the following for the purpose of searching for the thing:

(i) if the designated person is of the same sex as the suspect—conduct an ordinary search or a frisk search of the suspect;

(ii) search any thing under the suspect’s immediate control;

(iii) search any vehicle operated or occupied by the suspect.

Conditions relating to conduct of search of suspect

(3) If the designated person is not of the same sex as the suspect, an ordinary search or a frisk search of the suspect for the purpose of searching for the thing may be conducted by:

(a) if another designated person of the same sex as the suspect is reasonably available to conduct the search—that designated person; or

(b) if paragraph (a) does not apply but a police officer or an officer of Customs (within the meaning of subsection 4(1) of the Customs Act 1901) who is of the same sex as the suspect is reasonably available to conduct the search—that police officer or officer of Customs; or

(i) who is of the same sex as the suspect; and

(ii) who is requested by the designated person to conduct the search; and

(iii) who consents to conduct the search.

(4) If a designated person requests an officer of Customs or another person to conduct a search of a suspect, the designated person must explain to the officer of Customs or the other person:

(a) if the search requested is an ordinary search—the meaning of an ordinary search; and

(b) if the search requested is a frisk search—the meaning of a frisk search; and

(c) that the officer of Customs or the other person must not use more force, or subject a suspect to greater indignity, than is reasonable and necessary in order to conduct the search.

(5) An action or proceeding, whether civil or criminal, does not lie against a person who conducts a search under paragraph (3)(b) or (c) if the person acts in good faith and does not contravene subsection (6).

(6) A designated person or other person who conducts a search of a suspect under this section must not use more force, or subject a suspect to greater indignity, than is reasonable and necessary in order to conduct the search.

(7) A suspect must not be detained under this section for longer than is reasonably necessary for a search to be conducted under this section.

Designated person may search a thing

(8) If subparagraph (1)(a)(iv) applies, the designated person may, for the purpose of searching for the thing mentioned in that subparagraph, search a thing that the designated person suspects on reasonable grounds was brought by the suspect onto premises at which the Australian Federal Police is performing protective service functions.

Other conditions relating to conduct of search of suspect or thing

(9) In searching a thing under subsection (2) or (8), the designated person may use such force as is reasonable and necessary in the circumstances, but must not damage the thing by forcing it, or a part of it, open unless:

(a) if the search is under subsection (2)—the suspect has been given a reasonable opportunity to open the thing or part of it; or

(b) if the search is under subsection (8)—the person (if any) apparently in charge of the thing has been given a reasonable opportunity to open the thing or part of it; or

14K Seizure of things found

Designated person may seize a thing being searched for

(1) If, as a result of conducting a search under section 14J, a designated person, or a person who conducted the search under subsection 14J(3) on behalf of a designated person, finds the thing for which the designated person or person was searching, the designated person may seize the thing.

Designated person may seize a dangerous thing

(2) If, as a result of conducting a search under section 14J, a designated person, or a person who conducted the search under subsection 14J(3) on behalf of a designated person, finds a weapon, or other thing, that the designated person suspects on reasonable grounds is likely to be used by the suspect or another to cause death or serious harm to a person:

(a) in respect of whom the Australian Federal Police is performing protective service functions; or

(b) who is in a place, or in the vicinity of a person, place or thing, in respect of which the Australian Federal Police is performing protective service functions;

the designated person may seize the weapon or thing.

Protective service officer must deliver thing seized to police officer

(3) If the designated person is a protective service officer, the designated person must ensure that the thing is delivered into the custody of a police officer as soon as practicable.

14L How seized things must be dealt with

Seizure notice to be served

(1) A police officer who is for the time being responsible for a thing seized under section 14K must, within 7 days after the seizure day, serve a seizure notice on:

(a) the owner of the thing; or

(b) if the owner of the thing cannot be identified after reasonable inquiries—the person from whom the thing was seized.

(2) Subsection (1) does not apply if:

(a) both:

(i) the owner of the thing cannot be identified after reasonable inquiries; and

(ii) the thing was not seized from a person; or

(b) it is not possible to serve the person required to be served under subsection (1).

(3) A seizure notice must:

(a) identify the thing; and

(b) state the date on which the thing was seized; and

(d) state that, if the owner does not request the return of the thing within 90 days after the date of the notice, the thing is forfeited to the Commonwealth.

Return of thing seized

(4) The owner of a thing seized under section 14K may request the return of the thing.

(5) A police officer who is for the time being responsible for a thing seized under section 14K must return the thing to its owner if:

(a) the owner requests the return of the thing; and

(b) in the case of a thing seized under subsection 14K(1)—the police officer does not suspect on reasonable grounds that, if the thing is returned to the owner, the thing is likely to cause, or is likely to be used by the owner or another to cause:

(i) substantial damage to a place or thing in respect of which the Australian Federal Police is performing protective service functions; or

(ii) death or serious harm to a person in respect of whom the Australian Federal Police is performing protective service functions;

in circumstances that would be likely to involve the commission of a protective service offence; and

(c) in the case of a thing seized under subsection 14K(2)—the police officer does not suspect on reasonable grounds that, if the thing is returned to the owner, the thing is likely to be used by the owner or another to cause death or serious harm to a person:

(i) in respect of whom the Australian Federal Police is performing protective service functions; or

(ii) who is in a place, or in the vicinity of a person, place or thing, in respect of which the Australian Federal Police is performing protective service functions.

Forfeiture of thing seized

(6) A thing is forfeited to the Commonwealth if the owner of the thing does not request its return:

(a) before the end of the 90th day after the date of the seizure notice in relation to the thing; or

(b) if subsection (2) applied in relation to the thing so that a seizure notice was not served—before the end of the 90th day after the seizure day.

Application to magistrate

(7) If:

(a) the owner of a thing requests the return of the thing:

(i) within 90 days after the date of the seizure notice in relation to the thing; or

(ii) if subsection (2) applied in relation to the thing so that a seizure notice was not served—within 90 days after the seizure day; and

(b) the thing has not been returned to the owner by the end of the 90th day;

the police officer who is for the time being responsible for the thing must, before the end of the 95th day:

(d) apply to a magistrate for an order under section 14M.

Seizure day

(8) In this section:

seizure day means:

(a) in relation to a thing seized by a designated person who is a protective service officer—the day on which the thing was delivered into the custody of a police officer under subsection 14K(3); or

(b) in relation to a thing seized by a designated person who is a member or a special member—the day on which the thing was seized.

14M Application to magistrate

(1) If subsection 14L(7) applies, the police officer may apply to a magistrate for an order in relation to the thing to which that subsection applies.

(2) The magistrate must, in determining an application by a police officer under subsection (1), allow the owner of the thing to appear and be heard.

(3) If the magistrate is satisfied that:

(a) in the case of a thing seized under subsection 14K(1)—there are reasonable grounds to suspect that, if the thing is returned to the owner, the thing is likely to cause, or is likely to be used by the owner or another to cause:

(i) substantial damage to a place or thing in respect of which the Australian Federal Police is performing protective service functions; or

(ii) death or serious harm to a person in respect of whom the Australian Federal Police is performing protective service functions;

in circumstances that would be likely to involve the commission of a protective service offence; or

(b) in the case of a thing seized under subsection 14K(2)—there are reasonable grounds to suspect that, if the thing is returned to the owner, the thing is likely to be used by the owner or another to cause death or serious harm to a person:

(i) in respect of whom the Australian Federal Police is performing protective service functions; or

(ii) who is in a place, or in the vicinity of a person, place or thing, in respect of which the Australian Federal Police is performing protective service functions;

the magistrate may make any of the following orders:

(d) that the thing is forfeited to the Commonwealth;

(e) that the thing is to be sold and the proceeds given to the owner;

(f) that the thing is to be otherwise sold or disposed of.

(4) If the magistrate is not satisfied as mentioned in subsection (3), the magistrate must order that the thing be returned to the owner.

14N Relationship of Division to other laws

The powers conferred, and duties imposed, by this Division on protective service officers, members and special members are in addition to, and not in derogation of, any other powers conferred, or duties imposed, by any other law of the Commonwealth or the law of a State or Territory, and this Division is not intended to exclude or limit the operation of any other law of the Commonwealth or the law of a State or Territory in so far as it is capable of operating concurrently with this Division.

Part III—Commissioner, Deputy Commissioners and AFP employees etc.

Division 1—Commissioner and Deputy Commissioners

17 Commissioner and Deputy Commissioners

(1) The Commissioner of Police and one or more Deputy Commissioners of Police shall be appointed by the Governor‑General by Commission.

(2) Subject to this Part, the Commissioner holds office for such period, not exceeding 7 years, as is specified in his or her instrument of appointment, but is eligible for re‑appointment.

(3) Subject to this Part, a Deputy Commissioner holds office for the period, not exceeding 5 years, specified in the instrument of appointment, but is eligible for re‑appointment.

(3A) Where a person is re‑appointed under this section for a term beginning immediately after the end of the person’s last appointment, the person’s service is to be taken to be continuous.

(4) The Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor‑General.

(4A) A Deputy Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Commissioner.

18 Acting Commissioner and Deputy Commissioner during vacancy

(1) At any time when the office of Commissioner or an office of Deputy Commissioner is or is expected to be vacant (whether or not the office has previously been filled), the Minister may appoint a person to act as Commissioner or as a Deputy Commissioner, as the case may be, until the filling of the vacancy.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

(2) While a person is acting as Commissioner or as a Deputy Commissioner under subsection (1), he or she has, and may exercise, all the powers (except a power to make a declaration under subsection 40D(4)), and shall perform all the functions and duties, of the Commissioner or of the Deputy Commissioner, as the case may be.

19 Absence etc. of Commissioner or Deputy Commissioner

(1) At any time when the Commissioner or a Deputy Commissioner is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the Commissioner or a Deputy Commissioner, as the case may be, the next most senior member who is available has, and may exercise, all the powers (except a power to make a declaration under subsection 40D(4)), and shall perform all the functions and duties, of the Commissioner or the Deputy Commissioner, as the case may be.

(1A) The Minister may determine the remuneration and allowances of a person who exercises the powers, and performs the functions and duties, of the Commissioner under subsection (1).

(1B) The Commissioner may determine the remuneration and allowances of a person who exercises the powers, and performs the functions and duties, of a Deputy Commissioner under subsection (1).

(1C) A person is not entitled to be paid remuneration or allowances under this section for exercising the powers, and performing the functions and duties, of the Commissioner or a Deputy Commissioner for less than one week.

(2) The exercise of the powers and the performance of the functions and duties of the Commissioner or of a Deputy Commissioner by a member under this section does not affect the exercise of any power or the performance of any function or duty by the Commissioner or by the Deputy Commissioner, as the case may be.

(3) The validity of anything done by a person purporting to act in accordance with this section shall not be called in question on the ground that the occasion for his or her so acting had not arisen or had ceased.

(4) For the purposes of subsection (1), the order of seniority of members is as determined by the Commissioner.

(5) In this section, except so far as the contrary intention appears, a reference to the Commissioner or to a Deputy Commissioner shall be read as including a reference to an acting Commissioner or acting Deputy Commissioner, as the case may be, appointed under section 18.

20 Remuneration and allowances

(1) The Commissioner shall be paid such remuneration as is determined by the Remuneration Tribunal, but if no determination of that remuneration is in operation, he or she shall be paid such remuneration as is prescribed.

(2) The Commissioner shall be paid such allowances as are prescribed.

(2A) A Deputy Commissioner is to be paid such remuneration and allowances as the Commissioner determines in writing.

Note: The Commissioner may, under section 35A, authorise special payments to Deputy Commissioners.

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

21 Leave of absence

(1) The Commissioner has such recreation leave entitlements as are determined by the Remuneration Tribunal.

(1A) The Minister may grant the Commissioner leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.

(2) The Commissioner may grant leave of absence to a Deputy Commissioner on such terms and conditions as to remuneration or otherwise as the Commissioner determines.

22 Termination of appointment

(1) The Governor‑General may terminate the appointment of the Commissioner or a Deputy Commissioner by reason of misbehaviour or physical or mental incapacity.

(2) If the Commissioner or a Deputy Commissioner:

(a) engages in paid employment outside the duties of his or her office without the approval of the Minister;

(b) is absent from duty, except on leave of absence under section 21, for 14 consecutive days, or for 28 days in any 12 months; or

(c) becomes bankrupt or applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;

the Governor‑General shall terminate his or her appointment.

Division 2—AFP employees

Subdivision A—Engagement of AFP employees etc.

23 Employer powers etc. of Commissioner

(1) The Commissioner, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of AFP employees.

(2) Without limiting subsection (1), the Commissioner has, in respect of AFP employees, the rights, duties and powers that are prescribed by the regulations.

24 Engagement of AFP employees

(1) The Commissioner, on behalf of the Commonwealth, may, by writing, engage persons as employees.

Engagement may be made subject to conditions

(2) The engagement of an AFP employee may be made subject to conditions notified to the employee, including conditions dealing with any of the following matters:

(a) probation;

(b) citizenship;

(d) security and character clearances;

(e) health clearances;

(f) secrecy requirements.

(3) Subsection (2) does not, by implication, limit the conditions that may be applied to the engagement of an AFP employee.

Non‑Australian citizen

(4) The Commissioner must not engage, as an AFP employee, a person who is not an Australian citizen, unless the Commissioner considers it appropriate to do so.

This section has no application to overseas engagement

(5) This section does not apply to the engagement of persons overseas to perform duties overseas as employees.

Note: Section 69A deals with the engagement of such persons.

25 Senior executive AFP employees

The Commissioner may, by writing, declare an AFP employee to be a senior executive AFP employee.

26 Continuous employment

For the purposes of the Long Service Leave (Commonwealth Employees) Act 1976 and any other law of the Commonwealth, if:

(a) a person is engaged as an AFP employee under section 24 for a period; and

(b) the person completes that period of engagement (the initial period); and

(c) the person is re‑engaged under that section for a further period starting immediately after the end of the initial period;

the person’s employment is taken to be continuous from the beginning of the initial period until the end of the re‑engagement.

Subdivision B—Remuneration and other terms and conditions

27 Remuneration and other conditions

(1) The Commissioner may from time to time determine in writing the remuneration and other terms and conditions of employment applying to an AFP employee, other than:

(a) terms and conditions of employment that the Commissioner may determine under subsection 40H(2); or

(b) accommodation arrangements that are to apply to an AFP employee, and allowances an AFP employee is to be paid, while the employee is performing duties of the kind covered by paragraph 40H(3)(b).

Note: The Commissioner may, under section 35A, authorise special payments to AFP employees.

Application etc. of industrial instrument

(2) A determination under subsection (1) may apply, adopt or incorporate, with or without modification, any of the provisions of an industrial instrument, as in force at a particular time or as in force from time to time.

Industrial instrument prevails over a determination under subsection (1)

(3) An industrial instrument overrides any determination under subsection (1), to the extent of any inconsistency.

Interpretation

(4) In this section:

industrial instrument means an award, determination or industrial agreement made under the Fair Work Act 2009 or continued in existence by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (see item 2 of Schedule 3 to that Act).

Note: A determination under section (1) must not provide less than the minimum entitlements of employment under the Australian Fair Pay and Conditions Standard (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009: see item 4 of Schedule 2 to that Act) or under the National Employment Standards (within the meaning of the Fair Work Act 2009).

Subdivision C—Termination of employment

28 Termination of employment by Commissioner

The Commissioner may at any time, by notice in writing, terminate the employment of an AFP employee.

Note: The Fair Work Act 2009 has rules that apply to termination of employment.

Subdivision D—Resignation and retirement

30 Resignation

(1) An AFP employee may resign from the Australian Federal Police if, and only if:

(a) he or she gives written notice to the Commissioner of his or her resignation and the notice specifies, in accordance with subsection (2), the day his or her resignation is to take effect; or

(b) his or her resignation is in accordance with regulations under paragraph 70(g) (about resigning for the purpose of becoming a candidate at certain elections).

Limitation

(2) The day specified in a notice under paragraph (1)(a) must not:

(a) be earlier than 14 days, or such shorter period as the Commissioner allows; or

(b) be later than 4 months;

after the day on which the notice is given to the Commissioner.

(3) Paragraph (1)(a) is subject to section 30A.

30A Resignation in anticipation of termination of employment

(1) This section applies if:

(a) an AFP employee gives the Commissioner written notice of his or her resignation under paragraph 30(1)(a); and

(b) the employee’s conduct:

(i) has been, or is being, investigated as an AFP conduct issue that is a category 3 conduct issue; or

(ii) has raised a corruption issue that has been investigated; or

(iii) raises a corruption issue that is being investigated; and

(i) if the investigation has been completed—the Commissioner is considering terminating the employee’s employment under section 28 on the basis of the findings of the investigation;

(ii) if the investigation has not been completed—the Commissioner is not in a position to decide whether to terminate the employee’s employment under section 28 because the findings of the investigation are not yet known;

(iii) the Commissioner is satisfied that the employee’s conduct may amount to serious misconduct within the meaning of subsection 40K(3).

(2) The Commissioner may, by written notice to the AFP employee, substitute a day, no later than 90 days after the day specified in the employee’s notice of resignation, as the day on which his or her resignation is to take effect.

(3) The Commissioner may give more than one notice under subsection (2) to the AFP employee in relation to the notice of resignation.

(4) To be effective, the first notice given under subsection (2) in relation to the notice of resignation must be given to the employee before the day specified in the notice of resignation.

(5) To be effective, any subsequent notice given under subsection (2) in relation to the notice of resignation must be given to the employee before the day specified in the immediately preceding notice given under that subsection in relation to the notice of resignation.

(6) If one or more notices under subsection (2) have been given to the AFP employee in relation to the notice of resignation, the Commissioner may, by written notice to the AFP employee, substitute a day as the day on which his or her resignation is to take effect.

(7) The Commissioner may give a maximum of 2 notices under subsection (6) to the AFP employee in relation to the notice of resignation.

(8) To be effective, the first notice given under subsection (6) in relation to the notice of resignation must:

(a) specify a day no later than 30 days after the day specified in the most recent notice given under subsection (2) in relation to the notice of resignation; and

(b) be given to the AFP employee before the day specified in the most recent notice given under subsection (2) in relation to the notice of resignation.

(9) To be effective, any second notice given under subsection (6) in relation to the notice of resignation must:

(a) specify a day no later than 30 days after the day specified in the first notice given under subsection (6) in relation to the notice of resignation; and

(b) be given to the AFP employee before the day specified in the first notice given under subsection (6) in relation to the notice of resignation.

Note: The effect of subsections (2) to (9) is that the latest day that may be specified in a notice given under this section is the day 150 days after the day specified in the notice of resignation.

(10) On or before the day specified in the most recent notice given under this section in relation to the notice of resignation, the Commissioner must:

(a) accept the AFP employee’s notice of resignation; or

(b) terminate the AFP employee’s employment under section 28.

(11) If the Commissioner accepts the notice of resignation under paragraph (10)(a), the AFP employee’s resignation takes effect on the day on which the Commissioner communicates acceptance of the resignation to the employee.

(12) The Commissioner must:

(a) cause a review of the operation of this section to be undertaken as soon as practicable after the fifth anniversary of the commencement of this subsection; and

(b) give the Minister a report of the review.

31 Retirement upon reaching minimum retiring age

(1) An AFP employee who has reached the minimum retiring age is entitled to retire at any time by notice in writing to the Commissioner.

Minimum retiring age

(2) For the purposes of this section, the minimum retiring age is 55 years, or such higher or lower age as is prescribed by the regulations.

32 Retirement on invalidity grounds

Retirement of AFP employee by Commissioner

(1) If the Commissioner is satisfied that an AFP employee should be retired because of physical or mental incapacity, the Commissioner may retire the employee by notice in writing given to the employee.

AFP employee consents to retirement

(2) Before the Commissioner retires an AFP employee under subsection (1), the employee may, by notice in writing given to the Commissioner, consent to the Commissioner retiring the employee under that subsection.

Note: To find out when an AFP employee’s retirement takes effect in such a case, see section 33.

AFP employee not re‑engaged because of invalidity

(3) If:

(a) a person is engaged as an AFP employee under section 24 for a period; and

(b) the person completes that period of engagement (the initial period); and

(c) the person is not re‑engaged under that section for a further period starting immediately after the end of the initial period; and

(d) the Commissioner certifies in writing that the person’s physical or mental incapacity was the only reason why the person was not so re‑engaged;

the person is taken, for the purposes of the Safety, Rehabilitation and Compensation Act 1988, the Superannuation Act and the Superannuation Act 2005, to have been retired under this section on the day on which the initial period ended.

AFP employee is an eligible employee under the Superannuation Act 1976

(4) In spite of this section, an AFP employee who:

(a) is an eligible employee for the purposes of the Superannuation Act 1976; and

(b) has not reached his or her maximum retiring age (within the meaning of that Act);

is not capable of being retired on the ground of invalidity (within the meaning of Part IVA of that Act) unless CSC has given a certificate under section 54C of that Act.

AFP employee is a member of the superannuation scheme under the Superannuation Act 1990

(5) In spite of this section, an AFP employee who:

(a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and

(b) is under 60 years of age;

is not capable of being retired on the ground of invalidity (within the meaning of that Act) unless CSC has given a certificate under section 13 of that Act.

AFP employee is an ordinary employer‑sponsored member under the Superannuation Act 2005

(6) In spite of this section, an AFP employee who:

(a) is an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and

(b) is under 60 years of age;

is not capable of being retired on the ground of invalidity (within the meaning of that Act) unless CSC has given an approval and certificate under section 43 of that Act.

33 Time when retirement on invalidity grounds takes effect

AFP employee consents to retirement

(1) If an AFP employee has consented to being retired under subsection 32(1), the employee’s retirement takes effect on the day specified in the notice under that subsection. The day specified must not be before the day on which the notice is given to the employee.

AFP employee does not consent to retirement

(2) If an AFP employee who is retired under subsection 32(1) has not consented to being retired under that subsection:

(a) the notice given to the employee under that subsection must inform the employee that the employee is entitled to apply, within the period, and in the manner, prescribed by the regulations, for review of the Commissioner’s decision to retire the employee; and

(b) subject to the outcome of any such review, the employee’s retirement takes effect on a day specified in the notice.

(3) The day specified in the notice must not be before the end of the period mentioned in paragraph (2)(a).

Regulations

(4) The regulations may make provision in relation to the review of decisions of the Commissioner to retire AFP employees under subsection 32(1), where the employees have not consented to being retired under that subsection, including:

(a) the period within which, and the manner in which, AFP employees may apply for review of such decisions; and

(b) the powers available to a person or body conducting such a review; and

(c) if the regulations make provision for a person or body conducting such a review to make recommendations to the Commissioner—the Commissioner giving effect to such recommendations by confirming or revoking such decisions.

(5) Despite section 25D of the Acts Interpretation Act 1901, if regulations under subsection (4) make provision for a person or body conducting a review of decisions of a kind mentioned in that subsection to:

(a) give written reasons for any decision the person or body makes in relation to such a review; and

(b) give a copy of those reasons to the AFP employee concerned;

the regulations may also make provision in relation to:

(c) the exclusion from that copy of any information of a medical or psychiatric nature that the person or body thinks may be prejudicial to the employee’s physical or mental health or well‑being; and

(d) the employee nominating a medical practitioner to receive that information.

34 Voluntary retirement for the purposes of the Superannuation Act

Resignation

(1) If:

(a) an AFP employee resigns from the Australian Federal Police in accordance with section 30; and

(b) the resignation takes effect on or after the day on which he or she reaches 55 but before he or she reaches 60;

he or she is taken, for the purposes of the Superannuation Act, to have retired voluntarily.

Termination of employment

(2) If:

(a) an AFP employee’s employment is terminated under section 28; and

(b) the termination takes effect on or after the day on which he or she reaches 55 but before he or she reaches 60;

he or she is taken, for the purposes of the Superannuation Act, to have retired voluntarily.

Period of employment ends

(3) If:

(a) a person is engaged as an AFP employee under section 24 for a period; and

(b) the person completes that period of engagement (the initial period); and

(c) the person is not re‑engaged under that section for a further period starting immediately after the end of the initial period; and

(d) the initial period ends on or after the day on which he or she reaches 55 but before he or she reaches 60;

he or she is taken, for the purposes of the Superannuation Act, to have retired voluntarily.

Division 3—Consultants and independent contractors

35 Commissioner may engage consultants or independent contractors

(1) The Commissioner may, under written agreements, engage persons as consultants, or independent contractors, to perform services.

(2) The Commissioner may determine, in writing, that a consultant, or independent contractor, specified in the determination is to be an AFP appointee for the purposes of paragraph (f) of the definition of AFP appointee in subsection 4(1).

Note: The Commissioner may, under section 35A, authorise special payments to consultants and independent contractors who are determined to be AFP appointees.

(3) A determination under subsection (2) is not a legislative instrument.

Division 3A—Payments in special circumstances

35A Payments in special circumstances

(1) The Commissioner may authorise the making of payments to a person (the payee) under subsection (2) if the Commissioner considers it appropriate to do so because of special circumstances that relate to, or arise out of:

(a) the payee’s engagement as an AFP appointee; or

(b) another person’s engagement as an AFP appointee.

(2) The Commissioner may authorise the making of any of the following payments:

(a) one or more payments of an amount or amounts specified in the authorisation (or worked out in accordance with the authorisation);

(b) periodical payments of an amount specified in the authorisation (or worked out in accordance with the authorisation), during a period specified in the authorisation (or worked out in accordance with the authorisation).

(3) Payments may be authorised under this section even though the payments would not otherwise be authorised by law or required to meet a legal liability.

(4) An authorisation cannot be made under this section if it would involve, or be likely to involve, a total amount of more than $100,000.

(5) Conditions may be attached to payments under this section. If a condition is breached, the payment may be recovered by the Commonwealth as a debt in a court of competent jurisdiction.

Note: Payments under this section must be made from money appropriated by the Parliament. Generally, a payment can be debited against the Australian Federal Police’s annual appropriation, providing that it relates to some matter that has arisen in the course of its administration.

Division 4—Undertakings and oaths or affirmations

36 Undertakings and oaths or affirmations

Commissioner

(1) A person appointed as the Commissioner must, before commencing to perform his or her duties, make and subscribe, before a person authorised by the Minister, such oath or affirmation as is prescribed by the regulations.

Deputy Commissioner

(2) A Deputy Commissioner appointed under section 17 must, immediately after his or her appointment: