Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

The government opposes ALP amendments (2) and (3). They, of course, relate to review of category 1 and 2 items of behaviour, which are of a lesser magnitude or seriousness than category 3. I will deal with categories 1 and 2 first. I will briefly point out that under the system we are proposing the commissioner can no longer impose fines or demote AFP employees for misconduct matters in relation to these categories of conduct. This reflects Mr Fisher’s recommendation that these punitive measures are inappropriate for the modern AFP and are unlikely to lead to any real change in poor behaviour. The Fisher review recommended internal review should be available for category 1 or category 2 matters. This will take the form of review under the commissioner’s orders. The AFP Act currently allows the commissioner to issue orders in relation to the good administration of the AFP. The government believes it is best left for the commissioner through his orders to provide for internal review of these lower level matters. I understand that the drafting for the commissioner’s orders has commenced and there is provision in that for internal review.

In relation to the second part of the argument, that is, ALP amendment (3), which deals with category 3 matters, they are more serious and would entail conduct that could disclose a breach of criminal law. In that regard we believe that if the employee has his or her employment terminated there will be the possibility of review by the Australian Industrial Relations Commission unless the commissioner issues a declaration under section 40K of the AFP Act that the employee was terminated for serious misconduct. In that case, section 40K declarations, which are only issued in about five per cent of all terminations, are subject to review of administrative action by the Federal Court. So category 3 allows for review by the Australian Industrial Relations Commission; that is the status quo. Where it is of a more serious nature—five per cent of all terminations are covered in that more serious bracket—then that is subject to review by the Federal Court. Ordinary principles of administrative law require that, where termination is being considered, the employee will be given notice of the case against him or her and have an adequate opportunity to rebut that case.

It is important to remember that Mr Fisher in his review determined that there should not be any other external review other than by the Industrial Relations Commission, which I have mentioned. So I think this is something which does not require amendment. I know the AFP Association was of a view that we should have a wider external review, and I mentioned that in my speech in reply. This is something we will keep under scrutiny, but we believe that what we have proposed here is appropriate. I might add that category 3 matters would normally be formally investigated by the professional standards section of the AFP, and that reflects the more serious nature of category 3 conduct. For those reasons we oppose ALP amendments (2) and (3).