FEDERAL POLICE DISCIPLINARY TRIBUNAL

ANNUAL REPORT

2001-2002

Federal Police

Disciplinary Tribunal

Annual Report

2001-2002

©  Commonwealth of Australia 2002

ISSN 0812-0838

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7August 2002

The Honourable Daryl Williams AM QC MP

Attorney-General

Parliament House

CANBERRA  ACT  2600

Dear Attorney-General,

Pursuant to s 86 of the Complaints (Australian Federal Police) Act 1981, I submit to you a report of the operations of the Federal Police Disciplinary Tribunal for the year 1 July 2001 to 30 June 2002.

Yours sincerely,

(A.P. Whitlam)

President

CONTENTS

                                                                                                                                Page Number

Section 1  Introduction  - The Tribunal     1

1.1 Establishment and Constitution 1

1.2    Functions and Powers 1

1.3  Practice and Procedure  2

1.4  Information on the Tribunal  2

Section 2   Membership and Staff   3

Section 3 Activities 3

Section 4  Finance  4

Section 5 Appeals to the Federal Court of Australia   4

 Appendix I      Enquiries and contact officer for Annual Report   5

Document lodgement locations for the Tribunal   5

Appendix II    Registrar and Deputy Registrars of the Tribunal   6

Appendix III   Expenditure 6

Appendix IV  Reporting requirements under other legislation

1. Statement under Section 8 of the Freedom of Information Act 1982  7

2.  Information under Section 74 of the Occupational Health and Safety (Commonwealth Employment) Act 1991  8

3.Reporting under Section 516A of the Environment Protection and Biodiversity Conservation Act 1999 8

Section 1

INTRODUCTION - THE TRIBUNAL

This report deals with the operations of the Federal Police Disciplinary Tribunal (the Tribunal) for the year 1 July 2001 to 30 June 2002.

1.1       ESTABLISHMENT AND CONSTITUTION

The Tribunal is established by the Complaints (Australian Federal Police) Act 1981 (the Complaints Act).  The responsible Minister is the Attorney-General.  The Tribunal consists of a President and such number of Deputy Presidents and other members as are appointed by the Governor-General.  To be appointed as President or as a Deputy President a person must be, or have the same status as, a Judge of the Federal Court of Australia or of the Supreme Court of a State or Territory.  A member other than the President or a Deputy President must hold office as a Magistrate or be a legal practitioner of not less than five years standing.  A member holds office for such period, not exceeding seven years, as is specified in the instrument of his or her appointment, but is eligible for re-appointment.

For the purposes of the exercise of its powers in relation to a particular proceeding, the Tribunal is constituted by one member.  The President gives directions as to the person who is to constitute the Tribunal.

1.2   FUNCTIONS AND POWERS

The Tribunal deals with disciplinary offences under the Australian Federal Police (Discipline) Regulations 1979.  In addition, the Minister may refer to the Tribunal for inquiry and report a matter relating to the Australian Federal Police (AFP).

Disciplinary proceedings against AFP appointees are begun by the Commissioner of Police (the Commissioner).  The Complaints Act requires certain of those proceedings to be heard and determined by the Tribunal.  Other disciplinary proceedings may also be heard and determined by the Tribunal in circumstances prescribed by the Complaints Act, otherwise they are dealt with by the Commissioner.

If the Tribunal finds an AFP appointee guilty of a breach of discipline and the Tribunal is not constituted by the President or a Deputy President, it must remit the proceedings to the Commissioner for the imposition of a penalty.  An appeal lies against the penalty imposed by the Commissioner to the Tribunal constituted by the President or a Deputy President, which may affirm the penalty or substitute another penalty.

Where the Commissioner determines that an AFP appointee is guilty of a disciplinary offence and he or she imposes a penalty, an appeal lies to the Tribunal constituted by the President or a Deputy President.  The Tribunal may set aside the finding of the Commissioner and either substitute another finding or dismiss the proceeding, impose a penalty in respect of a breach of discipline different from that with which the AFP appointee concerned was charged, affirm the penalty imposed by the Commissioner, or set aside that penalty and substitute another penalty.

In prescribed circumstances the Tribunal may order the Commonwealth to pay the costs incurred by an AFP appointee of proceedings before it.

1.3       PRACTICE AND PROCEDURE

Hearings before the Tribunal normally take place in public.  Parties may be represented by a lawyer.  Proceedings are to be conducted with as little formality and technicality and with as much expedition as a proper consideration of the matter before the Tribunal permits.  The Tribunal is not bound by the rules of evidence.  The standard of proof required in proceedings before the Tribunal is proof on the balance of probabilities.

In exercising its discretion as to procedure, the Tribunal has regard to the philosophy embodied in the reports of the Australian Law Reform Commission that led to the enactment of the Complaints Act.  The Tribunal does not have an inquisitorial role in hearing and determining disciplinary proceedings.  Such proceedings are adversarial in nature and necessarily require a degree of formality.  They approximate curial proceedings.

1.4              INFORMATION ON THE TRIBUNAL

Information about the Tribunal is available on the internet at:

http://www.fedcourt.gov.au/aboutct/aboutct_fpdt.html

Section 2

MEMBERSHIP AND STAFF

The members of the Tribunal holding office during 2001-2002 were:

President

The Honourable Justice Antony Philip Whitlam  Term expires 16 March 2004

Deputy President

The Honourable Justice Howard William Olney  Term expired 4 July 2001

The Honourable Justice Susan Mary Kiefel  Appointed 8 October 2001 for 5 years.   Term expires 7 October 2006   

The Honourable Justice Mark Samuel Weinberg  Appointed 8 October 2001 for 5 years. Term expires 7 October 2006

The Registrars of the Tribunal and the Deputy Registrars of the Tribunal are listed in Appendix II.   They are all officers of the Federal Court of Australia.

Section 3

ACTIVITIES

No disciplinary proceedings were lodged with the Tribunal from 1 July 2001 to 30 June 2002 and no matters were referred by the Minister for inquiry and report.

The Tribunal has no premises of its own.  Hearing rooms and chambers are made available by the Federal Court of Australia as required.

The records of the Tribunal are kept by the Registrar in Sydney.  Facilities for lodging documents with the Tribunal are provided at the District Registries of the Federal Court of Australia. Addresses and contact details for the Tribunal are shown in Appendix  I.

Section 4

FINANCE

Resources for the Tribunal are appropriated to the Federal Court of Australia as part of the budget process and come within:

·        Federal Court of Australia Output Group 1.2  - "Management of cases and deciding of disputes according to law - Tribunals" and

·        Federal Court of Australia Output Group 1.3 - "Services to Government".

These output groups are set out in the Commonwealth Parliament Portfolio Budget Statements for the Attorney-General's Portfolio.

These resources are managed by the Federal Court on behalf of the Tribunal and are audited as part of the process for monitoring financial management in the Federal Court.

Expenditure during the year, which is specifically attributable to the Tribunal, is set out in Appendix III to this report.

Section 5

APPEALS TO THE FEDERAL COURT OF AUSTRALIA

The Complaints Act and Australian Federal Police Act 1979 provide for appeals to the Federal Court of Australia from decisions of the Tribunal in disciplinary proceedings.  There were no appeals from decisions of the Tribunal to the Federal Court of Australia during 2001-2002.

Appendix I

Enquiries (and contact officer for Annual Report):-

Registrar:   Jennifer Hedge

Address:   Level 16 Law Courts Building

Queens Square

Sydney  NSW  2001

Phone:   (02) 9230 8567

Fax:  (02) 9230 8535

Email: jennifer.hedge@fedcourt.gov.au

Internet information on Tribunal available at:

http://www.fedcourt.gov.au/aboutct/aboutct_fpdt.html

Document lodgement locations for the Tribunal

Registry Hours:

NSW, Qld, SA:              9.00am to 4.00pm          Victoria:            9.00am to 4.30pm

NT:                              9.30am to 4.00pm          Tasmania:         8.30am to 5.00pm

WA:                             8.30am to 4.00pm          ACT:                10am to 1.00pm &

2.00pm to 4.00pm

Appendix II

REGISTRAR AND DEPUTY REGISTRARS OF THE TRIBUNAL

As at  30 June 2002                                        Location:

Registrar                                                                     

Jennifer Hedge                                                  Sydney

Deputy Registrars

Patricia Christie                                     Adelaide

Graham Ramsey                                               Brisbane

Jamie Wood                                                      Melbourne

Martin Jan  PSM                                               Perth

Kim Lackenby                                                  Sydney

Appendix III

Specific expenditure in respect of the Federal Police Disciplinary Tribunal for the financial year ended 30 June 2002:

The Federal Court of Australia attends to the administration of the finances of the Tribunal.  The expenditure is audited as part of the annual audit of the Federal Court of Australia.

Appendix IV

REPORTING REQUIREMENTS UNDER OTHER LEGISLATION

1.        Statement under Section 8 of the Freedom of Information Act 1982

I.      Information on the organisation, functions and the decision-making powers of the Federal Police Disciplinary Tribunal is found on pages 1 and 2 of this Report.

        Powers affecting members of the public who are involved in the functions of the Tribunal are:

        (a)    The power to summon a person to appear before the Tribunal to give evidence and produce documents.  (s 71(2) of the Complaints (Australian Federal Police) Act 1981 (the Complaints Act).)

        (b)   The power to issue a warrant for the apprehension of a person who, having been so required by summons, fails to attend as a witness.  (s 73(1) of the Complaints Act.)

        (c)    The power to direct that a hearing, or a part of a hearing, shall take place in private.  (s 74(2)(a) of the Complaints Act.)

        (d)   The power to give directions restricting or prohibiting the publication or disclosure of certain evidence, matters, findings or decisions.  (s 74(2)(b) of the Complaints Act.)

        (e)    The power to permit certain persons to appear before the Tribunal and to permit their representation by a legal practitioner or by some other person.  (s 75(5) of the Complaints Act.)

        (f)    The power to make orders in respect of costs of proceedings.  (s 76(4)(c) of the Complaints Act and Regulation 7(1) of the Complaints (Australian Federal Police) Regulations.)

II.    There are no arrangements existing for bodies or persons outside the Commonwealth administration to participate either through consultative procedures, the making of representations, or otherwise in the formulation of policy by the Tribunal.

        To the extent that the Tribunal can be said to be administering the Complaints Act by dealing with proceedings before it, the bodies or persons outside the Commonwealth administration who participate in the functioning of the Tribunal are members of the Australian Federal Police and other persons and their legal representatives concerned in individual proceedings.  Members of the Tribunal who hold part-time appointments are considered to be within the Commonwealth administration when acting pursuant to their appointment to the Tribunal.

III.   The Tribunal maintains no documents open to public access under an Act (other than the Freedom of Information Act 1982) where access is subject to a fee or other charge.

        The Tribunal maintains no documents available for purchase by the public in accordance with any arrangement made by the Tribunal, other than decisions of the Tribunal that have not been the subject of a confidentiality order.

        The Tribunal customarily makes copies of its annual report available to the public (other than under the Freedom of Information Act 1982) free of charge upon request.

IV.   The Tribunal uses the registry facilities of the Federal Court of Australia, whenever required, to permit physical access by members of the public to its documents.  These registries are located in all Australian capital cities and are listed in Appendix I at page 5 of this Report.

V.    The Registrar and Deputy Registrars of the Tribunal are available to assist any applicant for access under the Freedom of Information Act 1982.  Initial inquiries concerning access to documents may be directed to the Registrar in Sydney on (02) 9230 8567.

        The Registrar of the Tribunal is the only officer authorised to deny access to documents.

        The Tribunal maintains no documents that are required to be available for inspection or purchase under s 9 of the Freedom of Information Act 1982.

        During the year the subject of this Report, the Tribunal did not receive any requests for access to documents under the Freedom of Information Act 1982.

2.          Information under Section 74 of the Occupational Health and Safety (Commonwealth Employment) Act 1991

The President and Deputy President of the Tribunal are Judges of the Federal Court of Australia and the Registrar and Deputy Registrars of the Tribunal are employees of that Court.  Therefore, the Tribunal does not have its own Occupational Health and Safety Policy. Any administrative matters relating to Occupational Health and Safety are dealt with through the Federal Court.

3.       Reporting under Section 516A of the Environment Protection and Biodiversity Conservation Act 1999

The Tribunal made no decisions during this reporting year involving consideration of the principles of ecologically sustainable development or the impact on the environment.  In addition, the Tribunal is staffed by and conducts its business using the facilities of the Federal Court of Australia.  Any administrative matters involving environmental issues are dealt with through Federal Court administrative policies.

 FEDERAL POLICE DISCIPLINARY TRIBUNAL ANNUAL REPORT 2001-2002