ANNUAL REPORT
1998-1999

© Commonwealth of Australia 1999

ISSN 0812-0838

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FEDERAL POLICE DISCIPLINARY TRIBUNAL

LEVEL 16
LAW COURTS BUILDING
QUEENS SQUARE
SYDNEY NSW 2000

8 October 1999

The Honourable Daryl Williams AM QC MP
Attorney-General
Parliament House
CANBERRA NSW 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 1998 to 30 June 1999.

Yours sincerely,

(A.P. Whitlam)
President

CONTENTS

Section 1 Introduction - The Tribunal
1.1 Establishment and Constitution
1.2 Functions and Powers
1.3 Practice and Procedure

Section 2 Membership and Staff

Section 3 Activities

Section 4 Finance

Section 5 Appeals to the Federal Court of Australia

Appendix I Registrar and Deputy Registrars of the Tribunal

Appendix II Proceedings before Tribunal during 1998-99

Appendix III Enquiries - Tribunal Registrar
District Registries of the Federal Court of Australia

Appendix IV Expenditure

Appendix V Reporting requirements under other legislation
Statement under section 8 of the Freedom of Information Act 1982
Information on Industrial Democracy and Occupational Health and Safety

Appendix VI Summary of compliance with requirements for annual reports
Contact Officer

Section 1

INTRODUCTION - THE TRIBUNAL

This report deals with the operations of the Federal Police Disciplinary Tribunal (the Tribunal) for the year 1 July 1998 to 30 June 1999.

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. 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 of proceedings before it incurred by an AFP appointee.

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.

Section 2: MEMBERSHIP AND STAFF

During the year the President retired, a new President was appointed, and one member resigned. The new President is a Judge of the Federal Court of Australia. The members holding office during 1998-1999 were:

President
The Honourable Justice Michael Leader Foster Term expired 26 November 1998

The Honourable Justice Antony Philip Whitlam Appointed 17 March 1999 for a
term expiring 16 March 2004

Deputy President
The Honourable Justice Howard William Olney Term expires 4 July 2001

Other Members
John Joseph Dainer A.M., R.F.D. Term expired 23 July 1998
Re-appointed 11 August 1998 for a term expiring 10 August 2000

Joan Annette Whyte Resigned 1 February 1999

Patricia Josephine Hanly Term expires 11 December 2000

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

Section 3: ACTIVITIES

The business of the Tribunal during the year consisted entirely of disciplinary proceedings. No matters were referred by the Minister for inquiry and report.

One disciplinary proceeding was current at the start of the year. Three proceedings were instituted during the year. All four matters were disposed of during the year. Details are given in Appendix II.

The Tribunal has no premises of its own. Hearing rooms and chambers were made available during the year by the Federal Court of Australia in Canberra. One directions hearing was conducted by telephone. These arrangements were satisfactory.

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. Their addresses and the contact telephone number of the Registrar in Sydney are shown in Appendix III.

Section 4: FINANCE

Funding for the Tribunal is appropriated to the Federal Court of Australia as part of Budget Program 4.5 - "Other Tribunals". This funding is managed by the Federal Court on behalf of the Tribunal and is audited as part of the process for monitoring financial management in the Federal Court.

Not all expenditure in relation to the Tribunal has been isolated due to the fact that the Federal Court provides the staff and administrative functions. Expenditure falling into this category includes salaries, postage, telephone and fax.

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

Section 5: APPEALS TO THE FEDERAL COURT OF AUSTRALIA

The Complaints Act provides for appeals to the Federal Court of Australia from decisions of the Tribunal in disciplinary proceedings.

David Ian MacCaul appealed against the Tribunal's finding on 2 October 1997 in Tribunal matter no. 3 of 1997 that he was guilty of acting in a manner unbecoming an AFP appointee. On 25 November 1998 a Full Court of the Federal Court allowed his appeal and set aside the Tribunal's decision. The court held that the Tribunal erred in law and that a finding of fact made by the Tribunal was not open on the evidence before it.

Appendix I: REGISTRAR AND DEPUTY REGISTRARS OF THE TRIBUNAL

Registrar
Jennifer Jill Hedge Sydney

Deputy Registrars
Peter Vance Carey Adelaide
Martin Tshin Fong Jan P.S.M Perth
Kim Margaret Lackenby Sydney
Graham Kingsley Ramsey Brisbane
Peter John Seccombe Melbourne

Appendix II: PROCEEDINGS BEFORE THE TRIBUNAL DURING 1998-1999

Appendix III Enquiries - Tribunal Registrar

Phone: (02) 9230 8567
Fax: (02) 9230 8535

District Registries of the Federal Court of Australia
(Providing lodgement facilities on behalf of the Tribunal)
New South Wales Victoria
Level 16 Law Courts Building Level 7
Queens Square 305 William Street
Sydney NSW 2000 Melbourne VIC 3000

Queensland South Australia
Level 6 8th Floor Grenfell Centre
Commonwealth Law Courts 25 Grenfell Street
119 North Quay Adelaide SA 5000
Brisbane QLD 4000

Western Australia Tasmania
Level 6 Ground Floor
Commonwealth Law Courts Commonwealth Law Courts Building
1 Victoria Avenue 39-41 Davey Street
Perth WA 6000 Hobart TAS 7000

Northern Territory Australian Capital Territory
First Floor First Floor Federal Court Building
Commonwealth Law Courts Childers Street
Corner of Mitchell and Herbert Streets Canberra ACT 2601
Darwin NT 0800

Federal Court Registry Business Hours:
NSW, Vic, Qld: 9.00am to 4.00pm
SA, NT: 9.30am to 4.00pm
WA: 8.30am to 4.00pm
Tas, ACT: 9.30am to 1.00pm
2.00pm to 4.00pm

Appendix IV: EXPENDITURE

Specific expenditure in respect of the Federal Police Disciplinary Tribunal for the financial year ended 30 June 1999:

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 V: REPORTING REQUIREMENTS UNDER OTHER LEGISLATION

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

I. Information on the particulars of the organisation and functions of the Federal Police Disciplinary Tribunal is contained at pages 1 to 3 of this Report and the decision-making powers in particular are described at page 3.

Powers affecting members of the public that are involved in the function 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 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 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 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 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)(b) of the Act.)

(f) The power to make orders in respect of costs of proceedings. (s.76(4)(c) of the 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 (Australian Federal Police) Act 1981 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, otherwise 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 III at page 10 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. Industrial Democracy and Occupational Health and Safety

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 Industrial Democracy plan or Occupational Health & Safety policy.

Appendix VI: SUMMARY of COMPLIANCE WITH GUIDELINES FOR ANNUAL REPORTS

Guidelines for the content, preparation and presentation of annual reports by statutory authorities (1982)