Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

by leave—I move opposition amendments (2) and (3) on revised sheet 4987:

(2)    Schedule 1, item 28, page 35 (after line 10), after section 40TV, insert:

40TVA  Review of category 1 or category 2 conduct report

        (1)    If the investigator is satisfied, on reasonable grounds, that the AFP appointee has engaged in category 1 or category 2 conduct, the Commissioner must provide a copy of the written report to the AFP appointee.

        (2)    The AFP appointee may request that the Commissioner conduct a review of the report or the recommendations.

        (3)    If the AFP appointee requests a review under subsection (2), the Commissioner must appoint a person (the reviewing officer) with appropriate qualifications or experience to conduct the review. The Commissioner must not appoint the investigator to conduct the review.

        (4)    The reviewing officer must provide to the Commissioner and the AFP appointee a report containing:

             (a)    the reviewing officer’s view as to whether the investigator’s findings are based on reasonable grounds; and

             (b)    the reviewing officer’s view as to whether the investigation was conducted appropriately.

        (5)    If the AFP appointee requests a review under subsection (2), the Commissioner must not take action under paragraph 40TV(b) until the reviewing officer has provided his or her report to the Commissioner.

(3)    Schedule 1, item 28, page 35 (after line 10), after section 40TV, insert:

40TVB  Review of category 3 conduct

        (1)    If the investigator is satisfied, on reasonable grounds, that the AFP appointee has engaged in category 3 conduct, the Commissioner must provide a copy of the report to the AFP appointee.

        (2)    The AFP appointee may apply to the Administrative Appeals Tribunal for a review of the investigator’s findings.

        (3)    This section does not apply to an AFP appointee who has been the subject of completed termination action.

As I indicated earlier, in terms of what has been picked up out of the Senate Legal and Constitutional Legislation Committee report, this goes to recommendation 13. The government may argue that they have picked it up in part. It is sometimes worth going back to the actual recommendation itself, and the words in the report that underpin it, but I will only go to the recommendation now because of the early hour in which we are debating this. At 4.65 of the committee report the committee recommended 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.

Amendment (2) sets up an internal review mechanism for categories 1 and 2 issues. It should be noted that affected AFP appointees have no guarantee that disciplinary action taken under this bill will not result in pecuniary loss. This matter was raised during the committee hearings. Labor thinks that it should in fact be spelt out. Amendment (3) ensures that an AFP appointee who has been through the category 3 conduct process, and who (a) has not been terminated, and therefore has no access to claims for unfair dismissal, and (b) does not have access to an external independent mechanism for review, can still access external review through the AAT.

You could have a situation that is not a termination but which is akin to termination. I am sure many here understand that constructive dismissal is not dismissal in truth, but a demotion of a type or size could effectively amount to a dismissal and therefore could not really go to the commission. Even if it does not amount to a constructive dismissal, it could be a penalty that provides a pecuniary loss of some substance to the officer or AFP appointee. It could mean a shift from shiftwork to day work, a shift from one location to another, recall from overseas deployment or a range of penalties. We will call them penalties, although they may in fact be disciplinary matters, as they can amount effectively to a penalty, which can range from minor to substantial. At that point there could be either an arbitrary or a considered application. In any event, there does not appear to be the ability for the officer to question it or have it reviewed externally, although certainly there may be an internal review mechanism and an independent review mechanism above that.

As in nearly every other work jurisdiction—save, of course, for those employees where there are less than 100 employees under the horrendous, shocking Work Choices legislation—people have the ability to go to the commission for dismissals. But, if there are issues that need to be settled, there are also dispute resolution procedures, usually contained within certified agreements or awards, providing access to an independent person for an assessment either at law or on the merits of the issue. We have suggested the AAT because it can deal with issues of both law and fact, not simply review of the law which goes to judicial review, and some of these matters are more likely to go to factual circumstances that the person might complain and feel aggrieved about. And of course the AAT is a less expensive path than running an ADJR case or seeking review in any higher court, because launching those types of actions brings with them significant costs.

This bill is missing an external review mechanism on merits for matters within category 3 that fall short of termination but are still serious and have serious consequences, including serious pecuniary consequences. In those instances there should be an external review mechanism available to allow the AFP appointee, at a lower or managerial level, aggrieved by a decision to have it looked at again. Quite frankly, I think that is consistent with the Fisher review.