Chapter 4 - Key Issues–AFP Professional Standards
Background
4.1
This chapter considers the main issues and
concerns raised in the course of the committee's inquiry in relation to the Law
Enforcement (AFP Professional Standards and Related Measures) Bill 2006 (AFP Professional
Standards Bill).
The Fisher Review
4.2
The proposals contained in the Bill
are based on the results of a 2003 review of Australian Federal Police (AFP)
professional standards undertaken by Justice William Fisher AO, QC (known as
the Fisher Review). The Fisher Review focused on the means by which police
administrators could achieve real discipline to increase and enhance
performance.
4.3
In his second reading speech the Attorney-General,
the Hon. Philip Ruddock MP,
explained that the Fisher Review[148]
found that the AFP's current disciplinary system was inconsistent with modern
management practices and the organisational needs of the AFP, and that its
focus on punitive outcomes, adversarial structure and formalised processes has
caused delay and unnecessary dispute.[149]
4.4
In identifying the problems with the current AFP
system, the Fisher Review noted that contemporary policing in the AFP was based
on a model characterised by '... strong notions of rank, subordination, command,
control and discipline'.[150]
4.5
The Review made 23 recommendations. These
included general principles, focusing on adopting the principles of the
managerial or administrative approach to professional standards.[151] The Review further recommended
repeal of the Complaints (Australian
Federal Police) Act 1981 (Complaints Act) and the related Commissioner's
Orders 5 and 6 (with the latter to be replaced by a new Commissioner's
order to underpin a new AFP complaints management model).[152]
4.6
Other important recommendations of the Review
included:
-
Inserting a new division in the Australian Federal Police Act 1979 (AFP
Act) to include a detailed complaints regime with clear definitions of the
conduct to which the new division of the Act applied. The new division should
not apply to conduct that is lawful and private.
-
There should be a statutory definition of 'non-reviewable
action', which would apply to complaints such as those of 'unsatisfactory
performance'.
-
The availability of a range of options for
non-reviewable actions ranging from the educational (coaching, mentoring) to
behavioural (counselling, reprimand) to structured change (change of duties,
transfer) and a recording of temporary or permanent adverse findings.
-
Provision for the Commonwealth Ombudsman to
intervene and examine any matter to ensure it is dealt with appropriately.
The new complaints and professional
standards system
4.7
The AFP Professional Standards Bill aims to modernise
the complaints and professional standards system for the AFP. To this end, and
consistent with the findings of the Fisher Review, the Bill proposes a more
modern managerial approach to replace the hierarchical disciplinary regime currently
provided under the Complaints Act, which the Bill repeals.[153]
4.8
The new complaints and professional standards
systems provide for a graduated system of categories of conduct, ranging
upwards in seriousness from categories 1 to 3 and an additional higher category
being conduct giving rise to a corruption issue.[154] The types of matters that fall into
each category are described only in general terms in the AFP Professional
Standards Bill.
4.9
The new AFP complaints and professional
standards system would differ from the current model by allowing:
-
all complaints, including those made by AFP
officers, to be categorised by the level of seriousness;
-
minor complaints – such as rudeness – to be
dealt with by managers quickly and informally (for example, in the context of
performance agreements); and
-
more serious complaints – including conduct such
as assault or persistent low-level misconduct – to be investigated by the unit
to be established within the AFP to deal with professional standards concerns.[155] All serious complaints could lead to
employment action being taken against the officer.[156]
The complaints process
4.10
In evidence, questions were raised about the how the complaints process would operate in the
new professional standards framework, and in particular, on the operation of
proposed Division 2, which relates to the mechanisms for raising AFP conduct
with the AFP.[157]
4.11
The committee was advised that the AFP is currently
re-drafting the internal guidelines on the professional standards framework to
accommodate the proposals in the Bill. The
options proposed for an officer making a complaint would be:
-
To give the information to another AFP appointee
outside of the work area, which may include giving the information directly to
Professional Standards.
-
To record the information directly pursuant to
proposed section 40SC. (The AFP will be implementing an online web-based
complaint recording system available to all AFP appointees to record and manage
complaints. This includes the ability to self report breaches of professional
standards.)
-
To give the information to a member of the AFP's
Confidante program, who will act as a support person for the affected AFP
appointee and assist throughout resolution of the matter.[158]
4.12
There are also processes for external and
isolated posts. These procedures are designed to ensure that the complaint is
managed externally; AFP appointees also are further protected by proposed
section 40YA which creates an offence of victimisation.[159]
Ombudsman's role
4.13
The Bill also
confers a revised role for the Commonwealth Ombudsman in relation to
professional standards. First, it designates the Commonwealth Ombudsman as the
Law Enforcement Ombudsman, a role that includes the oversight of complaints
handling and conduct issues in the AFP and the investigation of matters.[160]
4.14
Second, it gives the Ombudsman the ability to
jointly determine, with the AFP Commissioner, the kinds of issues that belong
to various categories of conduct.[161]
On a practical level, the Bill removes the need
for the Ombudsman to be involved in all complaints, which it was argued, would
allow it to focus on more serious complaints and systemic issues.[162]
Reactions to the proposal
4.15
Reactions to the Bill
have been essentially positive.
4.16
Commissioner Keelty
told the committee that both the AFP appointees[163] and complainants[164] stand to benefit from the new system.
These benefits include:
-
improved timeliness in resolving minor matters
for both AFP appointees and complainants;
-
results which aim to improve police conduct, as
well as reducing the possibility of the conduct recurring; and
-
improvements in performance oversight and
management.[165]
4.17
The Commonwealth Ombudsman stated that the office
had been 'closely involved' in the development of the AFP Professional
Standards Bill and that they supported the 'more streamlined approach to
handling complaints against the AFP'.[166]
4.18
Similarly, it was argued by the Commonwealth
Ombudsman that the new complaints and professional standards system would be
'more flexible and efficient' than the present approach which was described as
'a product of the thinking in the 1980s which required that precise rules be
set down to cover every possible circumstance'.[167]
4.19
From the Ombudsman's perspective, the Bill
would:
-
increase efficiency by removing the need to be
involved in all complaints – this would allow the Ombudsman to dedicate
increased resources to more serious and systemic matters; and
-
allow for improvements in its oversight role
because of the new audit function and the new focus on practice and procedure –
this would provide the Ombudsman with opportunities to look at broader
administrative practices within the AFP.[168]
4.20
The Australian Police Federation of Australia (AFPA)
is more critical in its assessment of the Bills. While generally supporting the
proposed changes, the Association does not believe that the Bill
covers all the required areas adequately and thus, should not be passed in its
current form.[169]
4.21
In evidence, Mr
James Torr,
Chief Executive Officer of the AFPA, emphasised the importance of managing the
new system effectively. He explained that no other area of management has so
much potential to disenfranchise employees if mismanaged: a mishandled complaint
or misconduct allegation, can damage the morale of not only the officer
concerned, but also engender cynicism and negativity across the whole work team.[170]
4.22
The main concern of the AFPA is that the proposed
changes in the Bill do not fully implement the recommendations
of the Fisher Review and that it had 'glaring omissions that impact quite
onerously on the rights of AFP employees'.[171]
In particular, the AFPA submission argues that:
-
the recommendations of Justice Fisher have not
been interpreted in the light of the changes in the industrial environment
since 2003;
-
non-reviewable outcomes have a punitive action
against the employee;
-
the AFP tribunal has been removed, but there is
no clear indication that AFP regulation 24 still applies to AFP employment
decisions (regulation 24 provides that a process for review of employment
decisions must exist at all times);[172]
-
there are no reviewable actions in the new
structure, as envisaged by Justice Fisher;
-
professional standards can be used as an
umbrella to incorporate employment related actions to usurp the application of
the Workplace Relations Act 1996; and
-
the new structure needs more refinement and
specificity in its powers and application to avoid the possibility of abuse and
misuse by those empowered within it.[173]
4.23
In relation to the Ombudsman, the AFPA hoped
that the change of focus would mean that the Ombudsman's office would become
'more effective in dealing with complaints at the senior level' of the AFP.[174] In evidence, Mr Torr
argued:
Many of our members currently see the Ombudsman as their last
line of defence of what they might perceive as mismanagement, but it does not
translate that way. With all due respect to that office and that role, it has
not proven effective in dealing with complaints about senior level police.[175]
4.24
The exact extent to which the recommendations of
the Fisher Review were incorporated into the Bills was unclear. The Attorney
General's Department indicated in evidence that 'pretty much all' of the recommendations
had been implemented, but the committee sought clarification.[176]
4.25
The Department took the question on notice and
sent the committee a detailed response. In summary, the Department indicates
that the Bill implements 15 of the Fisher
Review's 23 recommendations. The recommendations which were partially
implemented or implemented with some variation, include recommendations 7,
9 and 15. Broadly, these deal with the conduct and complaints investigation
process, and the role of the professional standards unit. Notable is the fact
the Justice Fisher saw no
reason to include 'minor management matters' in the legislation. He said:
9.2 This category of
complaint should be called 'minor management matters', which reflects the idea
that it incorporates customer service matters as well as other minor management
issues.
9.3 These managerial
resolutions should not be treated as complaints in the true sense as they would
fall outside the normal operation of the legislative structure for complaints.
They should be an exception to the normal operation of the complaints provisions
of the AFP Act.[177]
4.26
However, the Attorney General's Department notes
that 'all professional conduct issues, are captured within the Bill'.
Category 1 and 2 matters will not be subject to formal investigation by the
professional standards unit or to direct intervention by the Ombudsman.[178]
4.27
The Department also advised the committee that
two recommendations – 3 and 17 – are to be implemented by administrative
action. Fisher recommendation 3 concerns the repeal of the Commissioner's
orders, which the Department indicates 'is a matter for the Commissioner, but
the Commissioner is expected to implement this recommendation when the new
legislative framework is in place.'[179]
Fisher recommendation 17 concerns the unification of the areas of
Professional Standards and Employment Standards.
4.28
The committee was also advised that Fisher 'Recommendations 12,
16 and 23 will be implemented in part by the Bill
and in part by administrative action'.[180]
Recommendation 12 deals with the non-reviewable matters and the process of
assignment for investigation. Recommendation 16 deals with the recording
of complaints and the role of the Ombudsman, and recommendation 23 deals
with the appointment and function of the Overseas Liaison Officer.
Committee view
4.29
On this matter, the committee makes the
observation that there is no obligation per
se for the government to implement the Fisher recommendations as a whole. Nevertheless,
several matters require further consideration, in particular:
-
the provisions relating to the categorisation of
complaints;
-
the provision for review of decisions;
-
the resources available to the Commonwealth
Ombudsman; and
-
the application of professional standards to the
Commissioner.
Categorisation of complaints
4.30
A technical matter that arises in the Bill
is the potential problem caused by the omission of any specified timeframes for
the joint categorisation of complaints by the Commissioner and the Commonwealth
Ombudsman.
4.31
As outlined above, the AFP Professional
Standards Bill proposes that the complaints system include a graduated scheme
for categorising complaints. Minor complaints would be dealt with by managers
as performance issues and would attract category 1 classification
(clause 40RN). Category 2 conduct includes minor misconduct or repeated
instances of category 1 conduct (clause 40RO). The most serious matters
would fall into category 3 (clause 40RP). It should be noted that conduct
falling within category 3 does not raise a corruption issue but could give rise
to termination (which is dealt with in conjunction with ACLEI and the Integrity
Commissioner).
4.32
Clause 40RM provides for the AFP Commissioner
and the Commonwealth Ombudsman to determine jointly, by legislative instrument
the kind of conduct that falls into categories 1, 2 or 3. The AFPA observed that
there is no obligation for the Commissioner and the Ombudsman to categorise
conduct under clause 40RM within a specified time.[181] The AFPA was particularly concerned
that if no determination were in place when (and if) the Bill
commenced, all conduct for the purpose of AFP professional standards system
would be categorised by default as category 3.[182] On this point, the AFPA recommended:
The 'automation' needs to be taken out of s40RM (2)... There needs
to be a decision at the Commissioner or delegated level to proceed down the
CAT3 [category 3] path. There also needs to be an obligation to categorise
all uncategorised conduct as it arises.[183]
4.33
In evidence, the committee was told by a
representative of the Australian Federal Police that it was 'most unlikely'
that subclause 40RM(2) would operate as an automatic provision and that
'detailed work' had been undertaken jointly by the AFP and the Commonwealth
Ombudsman on the issue.[184]
4.34
A related concern focused on the potential for
misuse of managerial action 'as punitive action' in relation to category 1
conduct.[185] AFPA argued, for example,
that training and development action[186]
taken in relation to category 1 conduct could be an arrangement with 'considerable
punitive effect' due to loss of remuneration from requiring a person to undertake
different daily activities.[187]
4.35
In response, Commissioner Keelty
strongly argued that training and development action was not intended to be
used as a 'de facto punishment' and that the real issue was about 'applying
management strategies to change behaviour'.[188]
4.36
Similarly, an Attorney-General's Department
representative said that although the framework established by the Bill gives
discretion to AFP management regarding the appropriate corrective avenue for behaviour,
he did not accept that there was any risk of this mechanism being used to
inappropriately impose a 'significant pecuniary element'.[189] The Department undertook to provide
further information, and this was provided.
4.37
The Department indicated that the proposed subsection 40TC(1)
applies to category 1 conduct that has occurred.[190] While not providing complete
protection against pecuniary loss, the Department considers:
It is implicit in these provisions that the action taken must be
proportional to the conduct to which it is a response and that any impact other
than improvement in the appointee's performance must be genuinely coincidental.[191]
4.38
It would be inappropriate (according to the
Department) to offer any guarantee that an appointee will suffer no pecuniary
loss as a result of training and development action, as this would be a result
of underperformance or misconduct by the AFP officer concerned. In deciding
what is appropriate to effect the necessary changes in behaviour, the AFP
should take into account 'potential side-effects such as pecuniary loss... but
they should not deter a manager from taking action that is clearly required'.[192]
4.39
The Department notes the Commissioner's
undertaking at the hearing on 27 April
2006 'that the AFP will ensure through its internal guidelines that
the application of these outcomes is not used to impose pecuniary penalties'.[193] The Department also advised the committee
that the Professional Standards unit will have an oversight role to ensure that
these guidelines are properly and consistently applied throughout the AFP.
Committee view
4.40
The committee notes the response to the issue of
applying pecuniary penalties, and the assurances by the Commissioner of
internal controls on the regime for dealing with professional issues and
complaints.[194] The committee
acknowledges that the proposals are designed to manage conduct issues
efficiently, and that to over prescribe the rectification of these matters,
especially at the lower levels would reinstate the bureaucratic arrangement
which this legislation is designed to overcome.
4.41
In relation to the categorisation of
unacceptable conduct, the committee notes the terms of the proposed section
state that the AFP Commissioner and the Commonwealth Ombudsman 'may' make a
joint determination regarding the categories of conduct. As such, there is no
obligation to complete this in a specified time, or indeed any obligation to do
it at all.
4.42
While the committee acknowledges that the risk
of this occurring is minimal, the fact remains that if, in the absence of a
determination by legislative instrument, all matters become category 3
conduct, the purpose of the Bill in simplifying
and professionalising the AFP conduct scheme would be defeated.
4.43
As such, it is a matter that should be rectified
by amendment.
Recommendation 12
4.44
The committee recommends that the Law
Enforcement (AFP Professional Standards and Related Measures) Bill 2006 be
amended to provide that a determination on categories of conduct shall be made
by the Commonwealth Ombudsman and the Commissioner of the Australian Federal
Police within three months of the commencement of the Act.
Review of decisions
4.45
The AFPA is also concerned by the limited extent
to which the Bill incorporates the review
mechanisms envisaged by the Fisher Review.
4.46
In his review, Justice Fisher
recommended that behavioural or performance problems be addressed through what
he called 'non-reviewable managerial outcomes'. The process would involve a
delegate of the Commissioner appointing a manager to investigate the issue, and
report to the delegate for a final decision. An example of this process is set
out in the Police Service Act 1990
(NSW).[195] Fisher
then sets out a hierarchy of appropriate actions to rectify the matter.
4.47
More serious matters (breaches of the criminal
law, serious abuse of power or neglect of duty and matters raising employment
suitability) would be dealt with by a dedicated professional standards office.
4.48
All complaints (including minor management
matters) would be monitored by the Commonwealth Ombudsman who would have power
to intervene in certain circumstances.[196]
4.49
The Fisher review also considered that in the
more serious professional standards matters, decision making would still be
subject to review by the Federal Court under either section 39B of the Judiciary Act 1903 or the Administrative Decisions (Judicial Review)
Act 1977. He concluded that the jurisdiction of the Australian Industrial
Relations Commission (AIRC) to review employment related decisions would not be
affected.[197]
Provisions of the Bill
4.50
The Bill has been
drafted in a different employment landscape from that which operated when the
Fisher Review was completed, which raises issues as to its operation within the
revised workplace relations system.
4.51
The Bill does not
provide the kind of external review mechanisms anticipated by the Fisher review,
but instead attempts to compensate for this by reworking the role of the
Ombudsman. However his active participation is limited only to serious matters.
The Ombudsman noted in his submission that the current arrangement in which he
is required to oversee all matters has resulted in a 'disproportionate amount
of resources being dedicated to minor matters...the proposals...would allow the
Ombudsman to focus on more serious and systemic matters'.[198]
4.52
The Ombudsman notes that while he will be notified
of serious complaints he has discretion whether to oversee them. In his
submission he observes that the new focus on practice and procedure allows him
to examine AFP administrative practice, ‘subject to resources’. He indicates
that he intends 'to undertake a greater number of own-motion investigations, to
improve strategies for identifying systemic issues, for instance through
statistical analysis, and to provide greater oversight of investigations into
serious allegations'.[199]
4.53
Effectively though, there are no review
mechanisms in the Bill for the less serious category 1 or 2 matters, and it is
arguable whether there is any recourse for category 3 matters.
Concerns about absence of review
4.54
The AFPA argued that, by not fully implementing
the findings of the Fisher Review, the Bills do not provide proper independent external
review of such matters as dismissal decisions or decisions involving financial
penalties or punitive outcomes; nor internal appeal avenues for non-reviewable
matters.[200]
4.55
In evidence, representatives from AFPA stressed
that external review mechanisms were vital for ensuring accountability and
transparency within the AFP.
Everyone in the AFP needs to embrace accountability, including
the Commissioner.... On that basis, we call for an external review panel,
tribunal or court, as envisaged by the Fisher review and as is found in all
other Australian police forces bar none.[201]
4.56
In relation to lower level management decisions,
Mr Phillips
also drew a comparison between the Bill and the
disciplinary model that exists in the NSW Police Force that allows for
independent review.[202]
4.57
The AFPA also argued that the Bill
presents the additional danger that the use of the 'professional standards
rubric' could blur the edges of what is considered to be a professional
standards issue versus an employment or management issue.
4.58
The proposed change to paragraph 69B (1) (b)
of the AFP Act, would limit the operation of the Workplace Relations Act 1996 (WRA). As a result, the AFPA claims that
action in relation to a matter under the new professional standards system
would be excluded from the WRA and that the change would be 'considerably
onerous' on AFP appointees because of the potential for certain managerial
decisions to 'become professional standards actions for the purpose of usurping
the WRA'.[203] The AFPA's submission
questioned whether the decision to terminate would then be reviewable under the
WRA.
4.59
The Attorney-General's Department rejected this
analysis, arguing that the AFP Professional Standards Bill would still allow termination
decisions to be taken to the AIRC,[204]
except decisions to terminate employment by reason of serious misconduct.[205] It was further argued that it
remained appropriate for decisions of the AFP Commissioner relating to
corruption to have this exemption in order to avoid an 'unproductive review
path'.[206] Commissioner Keelty
further noted that, in exercising such powers within the last five years, he
exercised the discretion personally and did so carefully and with 'due
consideration'.[207]
Committee
view
4.60
The committee notes that the AFP Professional
Standards Bill is intended to streamline the disciplinary process within the
AFP. It appears that the Fisher Review has provided a basis for this, and the AFP
Commissioner is to be commended for personally initiating the Review process.
4.61
The committee also notes the revised role of the
Ombudsman, and that there is some scope for him to review all matters relating
to professional conduct and complaints.
4.62
However, the committee notes that efficiency of
administration should not compromise procedural fairness. Any complaint about
an employee whether proved or not, can affect not only the employee, but the
workplace as well. At the same time, there is no point in compromising the
administration, and adding layers of responsibility which may have no
discernable result.
4.63
The committee considers that the lower level
disciplinary matters should be subject to internal review while more serious
matters should be the subject of external review for example, through the Administrative
Appeals Tribunal.
4.64
The issues surrounding a possible conflict with
the Workplace Relations Act 1996 represent
a potentially serious problem. Although the Attorney-General's Department
indicated that the matter of recourse to the AIRC is being examined, the committee
considers that any conflict which may serve to preclude a person who has been
dismissed having recourse to the AIRC should be resolved before the Act
commences.
Recommendation 13
4.65
The committee recommends that the lower level
disciplinary matters (categories 1 and 2) should be subject to internal
review while more serious matters (category 3) should be the subject of
external review for example, through the Administrative Appeals Tribunal.
Recommendation 14
4.66
The committee also recommends that the possible
conflict of the Bill with the Workplace Relations Act 1996 be
resolved, before the Law Enforcement (AFP Professional Standards and Related
Measures) Bill 2006 is enacted.
Commonwealth Ombudsman
4.67
The Commonwealth Ombudsman noted that its
resources and funding requirements need to be reviewed in light of its
additional responsibilities and change of focus under the Bill.
It is expected that the creation of a new Law Enforcement
Ombudsman role, with a new audit function and the development of an enhanced
own motion program, with the requirement to report at least annually, will
place additional demands on my office.[208]
4.68
Dr Thom
from the Office of the Ombudsman added:
I think the concern might be that we focus the resources on the
complaints rather than doing own motion investigations. So you can deal
reactively with the things that come in, but you do not proactively look at
systemic issues, and that would be a concern for us.[209]
4.69
In commenting on the demands on the operation of
the Ombudsman's office, a representative from the Attorney-General's Department
said that he had not received any indication that the legislative changes would
affect current resources, but undertook to examine the issue.[210]
Committee view
4.70
The committee notes that AFP Professional
Standards Bill and its companion Bills do appear to place additional
responsibilities on the Commonwealth Ombudsman.
4.71
The committee considers it essential that the
steadily widening jurisdiction of the Ombudsman does not erode the
effectiveness of the office's capacity to scrutinise agencies' actions. As
such, funding must keep pace with responsibilities. The committee urges the
government to review the funding of the Ombudsman during forthcoming budgets to
ensure this occurs.
Coverage of professional standards
4.72
The AFP Professional Standards Bill gives the
AFP Commissioner the power to determine the professional standards to be
complied with by AFP appointees (clause 40RC). However, the AFPA suggested
that the Bill, as currently drafted, does not
appear to subject the Commissioner to the new professional standards system
contained in Part V.
There is nothing that expressly excludes the Commissioner from
following the professional standards of the AFP, likewise however, there is
nothing to expressly include the Commissioner under the regime.[211]
4.73
The committee considers that there is no doubt
that the professional standards regime should – and is intended to – apply to
the Commissioner. The provisions should be reviewed to remove any doubt on this
point.
Recommendation 15
4.74
The committee recommends that the Law
Enforcement (AFP Professional Standards and Related Measures) Bill 2006 clarify
that the professional standards regime applies to the Commissioner of the
Australian Federal Police.
Senator
Marise Payne
Committee Chair
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