AUSTRALIAN FEDERAL POLICE ACT 1979 AUSTRALIAN FEDERAL POLICE ACT 1979 - TABLE OF PROVISIONS PART I--PRELIMINARY 1. Short title [see Note 1] 2. Commencement [see Note 1] 3. Repeal 3A. Overview of Act 4. Interpretation 4AA. State offences that have a federal aspect 4A. Commissioner may specify prohibited drugs 5. References in other laws 5A. Application and extension of Act and regulations 5B. Application of the Criminal Code PART II--CONSTITUTION, FUNCTIONS AND POWERS OF THE AUSTRALIAN FEDERAL POLICE Division 1--Constitution, functions and laws conferring powers on members etc 6. Constitution of the Australian Federal Police 8. Functions 8A. Minister may direct which functions are protective service functions 9. Laws conferring powers on members 11. State and Territory writs and warrants 12. Immunities from certain State and Territory laws 12A. Immunity from State and Territory laws in relation to entry etc. of police dogs on premises etc. Division 3--Powers and duties of protective service officers 14A. Powers of arrest 14B. Use of force in making arrest etc. 14C. Arrested person to be informed of grounds of arrest 14D. Search of arrested person 14E. How arrested person to be dealt with 14F. Release of arrested person 14G. Relationship of Division to other laws Division 4--Powers and duties of members, special members and protective service officers relating to protective service functions 14H. Definitions 14I. Requirement to provide name etc. 14J. Stopping and searching 14K. Seizure of things found 14L. How seized things must be dealt with 14M. Application to magistrate 14N. Relationship of Division to other laws PART III--COMMISSIONER, DEPUTY COMMISSIONERS AND AFP EMPLOYEES ETC Division 1--Commissioner and Deputy Commissioners 17. Commissioner and Deputy Commissioners 18. Acting Commissioner and Deputy Commissioner during vacancy 19. Absence etc. of Commissioner or Deputy Commissioner 20. Remuneration and allowances 21. Leave of absence 22. Termination of appointment Division 2--AFP employees Subdivision A--Engagement of AFP employees etc 23. Employer powers etc. of Commissioner 24. Engagement of AFP employees 25. Senior executive AFP employees 26. Continuous employment Subdivision B--Remuneration and other terms and conditions 27. Remuneration and other conditions Subdivision C--Termination of employment 28. Termination of employment by Commissioner Subdivision D--Resignation and retirement 30. Resignation 30A. Resignation in anticipation of termination of employment 31. Retirement upon reaching minimum retiring age 32. Retirement on invalidity grounds 33. Time when retirement on invalidity grounds takes effect 34. Voluntary retirement for the purposes of the Superannuation Act Division 3--Consultants and independent contractors 35. Commissioner may engage consultants or independent contractors Division 4--Undertakings and oaths or affirmations 36. Undertakings and oaths or affirmations PART IV--COMMISSIONER'S COMMAND POWERS ETC Division 1--Administration and control etc 37. General administration and control 38. Commissioner's Orders 39. Compliance with Commissioner's Orders 40. Compliance with specific directions, instructions or orders 40A. Self-incrimination Division 2--Conferral of status of member and conferral of commissions 40B. AFP employees who are members of the Australian Federal Police 40C. Determination of competency or qualification requirements 40D. Commissioned police officers Division 3--Special members 40E. Special members Division 3A--Conferral of status of protective service officer 40EA. AFP employees who are protective service officers 40EB. Determination of competency or qualification requirements Division 3B--Special protective service officers 40EC. Special protective service officers 40ED. Powers and duties of special protective service officers Division 4--Secondment 40F. Secondment of AFP employees to other police forces etc. 40G. Effect of secondment on status as AFP employee etc. Division 5--Assignment and suspension of duties etc 40H. Assignment of duties etc. 40J. Suspension from duties etc. Division 6--Declarations of serious misconduct 40K. Termination of employment for serious misconduct Division 7--Submission of financial statements 40L. Financial statements Division 8--Drug testing 40LA. Alcohol screening tests 40M. Alcohol breath tests and prohibited drug tests 40N. Alcohol breath tests and prohibited drug tests after certain incidents 40P. Regulations 40PA. Managers who may require alcohol screening tests 40Q. Admissibility of test results etc. in legal proceedings 40R. Approval of screening devices PART V--PROFESSIONAL STANDARDS AND AFP CONDUCT AND PRACTICES ISSUES Division 1--Preliminary Subdivision A--Objects and simplified outline of Part 40RA. Object of this Part 40RB. Simplified outline of this Part Subdivision B--Professional standards for AFP appointees 40RC. Commissioner may determine professional standards Subdivision C--Unit within Australian Federal Police to undertake professional standards functions 40RD. Unit to be constituted 40RE. Head of unit 40RF. Assignment of members, and special members, to unit 40RG. Member or special member in unit may be directed to perform other duties Subdivision D--AFP conduct issues and AFP practices issues 40RH. AFP conduct issues 40RI. AFP practices issues 40RJ. Exclusion of certain employment action Subdivision E--Categories of AFP conduct issues and managers 40RK. Categories of conduct 40RL. Categories of AFP conduct issues 40RM. AFP Commissioner and Ombudsman to determine the kinds of conduct that are to be category 1, category 2 or category 3 conduct 40RN. Category 1 conduct 40RO. Category 2 conduct 40RP. Category 3 conduct 40RQ. Managers for particular categories of AFP conduct issues Division 2--Raising AFP conduct and practices issues with the AFP for action under Division 3 40SA. Giving information that raises an AFP conduct or practices issue 40SB. Arrangements for person in custody to give information 40SC. Recording and dealing with information given under section 40SA 40SD. Commissioner may decide that AFP conduct issue should be dealt with under this Part 40SE. Recording and dealing with information referred under section 40SD Division 3--Dealing with AFP conduct or practices issues Subdivision A--Preliminary 40TA. Commissioner's orders about how AFP conduct or practices issues are dealt with 40TB. Dealing with related AFP conduct issues that have different categories 40TC. Training and development action 40TD. Remedial action 40TE. Termination action Subdivision B--Discretion to take no further action in relation to issue 40TF. Discretion to take no further action in relation to AFP conduct or practices issue Subdivision C--Dealing with category 1 and category 2 conduct issues 40TG. When Subdivision applies 40TH. How issue is dealt with 40TI. Action that may be taken in relation to category 1 conduct 40TJ. Action that may be taken in relation to category 2 conduct 40TK. AFP practices issue identified in course of dealing with AFP conduct issue Subdivision D--Dealing with category 3 conduct issues and corruption issues 40TL. When Subdivision applies 40TM. Head of unit constituted under section 40RD to notify Ombudsman of category 3 conduct issues 40TN. Head of unit constituted under section 40RD generally allocates issues for investigation 40TO. Commissioner must allocate issue to someone outside unit constituted under section 40RD in certain circumstances 40TP. Persons eligible to have category 3 conduct issue or corruption issue allocated to them 40TQ. How category 3 conduct issue or corruption issue is dealt with 40TR. Recommendations that may be made in relation to category 3 conduct or corrupt conduct 40TS. Investigative powers 40TU. Report of investigation 40TV. Taking action on report 40TW. AFP practices issue identified in course of dealing with AFP conduct issue Subdivision E--Dealing with AFP practices issues 40TX. Commissioner to ensure that appropriate action is taken in relation to AFP practices issue Division 4--Ministerially directed inquiries 40UA. Minister may arrange special inquiries 40UB. Minister to inform certain persons and bodies of inquiry 40UC. Division 3 investigation may be suspended pending outcome of inquiry 40UD. Reports of special inquiries Division 5--Investigative powers 40VA. Application of Division 40VB. Manner of conducting investigation or inquiry 40VC. Obtaining information and making inquiries 40VD. Relationship with other laws 40VE. Directions to AFP appointee 40VF. Entering and searching AFP premises 40VG. Special powers if investigator conducting inquiry under Division 4 40VH. Offences Division 6--Record keeping 40WA. Record keeping 40WB. Records about corruption issues Division 7--Ombudsman review 40XA. Annual reviews by Ombudsman 40XB. Ad hoc reviews by Ombudsman 40XC. Commissioner to provide information and access to documents 40XD. Annual reports by Ombudsman Division 8--Offences 40YA. Victimisation 40YB. Providing false information about AFP conduct or practices issues 40YC. AFP appointees to provide name, etc. Division 9--Secrecy 40ZA. Secrecy Division 1--Introductory 41. Definitions 41A. Old law members or staff members 42. Related offences 42A. Abscond 42B. Charge with offence 42C. Conviction and quashing of conviction 42D. Property of a person 42E. Dealing with property 42F. Effective control of property 42G. Sufficient consideration 42H. Application of Part to convictions and offences 42J. Crown bound Division 2--Loss of superannuation 43. Notice of charge etc. 44. Authority to apply for superannuation order 45. Application for superannuation order 45A. Application for superannuation order: evidence 46. Superannuation orders 46A. When does a superannuation order take effect? 47. Effect of superannuation order 47A. Superannuation orders: variation 47B. Superannuation orders: revocation Division 3A--Restraining orders 49A. Application for restraining order 49B. Making of restraining orders 49C. Restraining order may be subject to conditions 49D. Affidavit of police officer needed in certain cases 49E. Notice of application for restraining order 49EA. Extension of certain restraining orders 49F. Persons who may appear and adduce evidence 49G. Witnesses not required to answer questions etc. in certain cases 49H. Notice of restraining orders 49J. Ancillary orders 49K. Charge on property subject to restraining order 49L. Registration of restraining orders 49M. Contravention of restraining orders 49N. Restraining orders: revocation 49P. When do restraining orders cease to have effect? 49Q. Extension of period of effect of restraining orders 49R. Notice of applications Division 4--Miscellaneous 51. Person ceases to be an AFP employee: persons charged with corruption offences 53A. Court may lift corporate veil etc. 54. Amounts payable under section 46, 47, 47B or 51 54A. Multiple payments in respect of same employee contributions not allowed 55. Possible superannuation order not to be taken into account in sentencing 56. Constitution of appropriate courts PART VI--MISCELLANEOUS 60A. Secrecy 61. Awards for bravery etc. 63. Personation etc. of member or special member 63A. Personation etc. of protective service officer or special protective service officer 63B. Possession of documents etc. 64. Assault etc. 64A. Members in uniform to wear identification numbers 64AAA. Protective service officers in uniform to wear identification numbers 64AA. Suspended AFP employees who are members 64AAB. Suspended AFP employees who are protective service officers 64B. Liability for wrongful acts of members 66. Protection of persons in respect of work reports 67. Annual reports 68. Proof of appointment, status of member etc. 68A. Certificates in relation to transferred PSOs 69. Prohibition of patronage and favouritism 69A. Persons engaged overseas as employees 69B. Limited operation of Workplace Relations Act 69C. Delegation 69D. Secondment of persons to assist the Australian Federal Police 69E. Commissioner may charge for certain protective services 70. Regulations PART VII--TRANSITIONAL 71. Interpretation of Part VII 75. Recognition of previous service for certain purposes 77. Accrued leave 80. Powers and duties in relation to Commonwealth places AUSTRALIAN FEDERAL POLICE ACT 1979 - LONG TITLE An Act to establish the Australian Federal Police, and for related purposes AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 1 Short title [see Note 1] This Act may be cited as the Australian Federal Police Act 1979. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 2 Commencement [see Note 1] (1) Sections 1, 2, 4 and 6, Division 1 of Part IV and sections 28 and 70 shall come into operation on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act shall come into operation on a date to be fixed by Proclamation. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 3 Repeal The Commonwealth Police Act 1957 is repealed. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 3A Overview of Act Constitution of the Australian Federal Police (1) Division 1 of Part II of this Act provides that the Australian Federal Police consists of a Commissioner of Police, one or more Deputy Commissioners of Police, AFP employees, special members and special protective service officers. Commissioner and Deputy Commissioners (2) The Commissioner and Deputy Commissioners are appointed by the Governor-General. Division 1 of Part III sets out matters dealing with such appointments. AFP employees (3) The Commissioner may engage persons as AFP employees. Division 2 of Part III covers matters to do with the employment of AFP employees. For example, it deals with the remuneration and terms and conditions of employment of AFP employees, how AFP employees can resign or retire and how the Commissioner may terminate the employment of AFP employees. Members of the Australian Federal Police (4) The Commissioner and any Deputy Commissioner are members of the Australian Federal Police. Under Division 2 of Part IV, the Commissioner may declare AFP employees to be members and certain members may be declared to be commissioned police officers. Under Division 1 of Part II, members provide police services and that Division also deals with powers of members. Special members of the Australian Federal Police (5) Under Division 3 of Part IV, the Commissioner may appoint persons as special members to assist the Australian Federal Police in carrying out its functions. Protective service officers of the Australian Federal Police (5A) Under Division 3A of Part IV, the Commissioner may declare AFP employees to be protective service officers. Divisions 3 and 4 of Part II deal with the powers of protective service officers. Special protective service officers of the Australian Federal Police (5B) Under Division 3B of Part IV, the Commissioner may appoint persons as special protective service officers to assist in performing protective service functions. Commissioner's command powers (6) The Commissioner has the general administration of, and the control of the operations of, the Australian Federal Police. Part IV is mainly about the Commissioner's command powers. For example, the Commissioner may determine the duties of AFP employees and where those duties are to be performed. Other topics covered by that Part include secondment and drug testing. Professional standards and dealing with AFP conduct or practices issues (6A) Part V provides for the setting of AFP professional standards and the way in which AFP conduct or practices issues are raised and dealt with. Other matters (7) This Act also: (a) deals with the use of listening devices in relation to offences (see Division 2 of Part II); and (aa) deals with the powers of protective service officers and certain other powers relating to protective service functions (see Divisions 3 and 4 of Part II); and (b) deals with when AFP employees lose certain superannuation rights and benefits (see Part VA); and (c) deals with other matters such as secrecy obligations, offences and certain administrative matters (all of which are contained in Part VI). AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 4 Interpretation (1) In this Act, unless the contrary intention appears: "adjustment payment" means a payment made in accordance with a determination that is continued in force by item 8 of Part 1 of Schedule 3 to the Australian Federal Police Legislation Amendment Act 2000 (including a payment made in accordance with such a determination as amended or varied in accordance with that item). "AFP appointee" means: (a) a Deputy Commissioner; or (b) an AFP employee; or (c) a special member; or (d) a special protective service officer; or (e) a person engaged overseas under section 69A to perform duties overseas as an employee of the Australian Federal Police; or (f) a person who is: (i) engaged under section 35 as a consultant, or independent contractor, to perform services for the Australian Federal Police; and (ii) a consultant, or independent contractor, determined by the Commissioner under subsection 35(2) to be an AFP appointee for the purposes of this paragraph; or (g) a person who is assisting the Australian Federal Police in the performance of its functions under an agreement under section 69D. "AFP conduct issue" has the meaning given by sections 40RH and 40RJ. "AFP conduct or practices issue" means: (a) an AFP conduct issue; or (b) an AFP practices issue. "AFP employee" means a person engaged under section 24. "AFP practices issue" has the meaning given by section 40RI and 40RJ. "AFP professional standards" means professional standards determined under Commissioner's orders made for the purposes of section 40RC. "alcohol screening test" in relation to a person, means a test of sample of the breath of the person carried out by means of an approved screening device. "approved screening device" means a device of a type that is approved by the Minister under section 40R. "authority of a State or Territory" means: (a) a body, whether incorporated or unincorporated, established for a public purpose by or under a law of that State or Territory, other than a body that, under the regulations, is not to be taken to be an authority of that State or Territory for the purposes of this Act; or (b) any other body declared by the regulations to be an authority of that State or Territory for the purposes of this Act, being: (i) a body, whether incorporated or unincorporated, established by the Governor, or a Minister of the Crown, of that State or, in the case of the Northern Territory, a Minister; or (ii) an incorporated company in which that State or Territory, or a body corporate falling within paragraph (a) or subparagraph (i), has a controlling interest. "authority of the Commonwealth" means: (a) a body, whether incorporated or unincorporated, established for a public purpose by or under a law of the Commonwealth, other than a body that, under the regulations, is not to be taken to be an authority of the Commonwealth for the purposes of this Act; or (b) any other body declared by the regulations to be an authority of the Commonwealth for the purposes of this Act, being: (i) a body, whether incorporated or unincorporated, established by the Governor-General or by a Minister; or (ii) an incorporated company in which the Commonwealth or a body corporate falling within paragraph (a) or subparagraph (i) of this paragraph has a controlling interest. "blood test" means a test of a person's blood to determine the amount of alcohol (if any) in the person's blood. "body sample" means any of the following: (a) any human biological fluid; (b) any human biological tissue (whether alive or otherwise); (c) any human breath. "breath test" means a test of a person's breath to determine the amount of alcohol (if any) in the person's blood. category 1 conduct has the meaning given by section 40RN. category 1 conduct issue has the meaning given by subsection 40RL(1). category 2 conduct has the meaning given by section 40RO. category 2 conduct issue has the meaning given by subsection 40RL(2). category 3 conduct has the meaning given by section 40RP. category 3 conduct issue has the meaning given by subsection 40RL(3). "collective agreement" has the same meaning as in the Workplace Relations Act 1996. "commissioned police officer" means any member in respect of whom a declaration under section 40D is in force. "Commissioner" means the Commissioner of Police referred to in section 6. "Commissioner's Orders" means orders under section 38. "complainant" has the meaning given by subsection 40SA(3). "corrupt conduct": see engages in corrupt conduct. "corruption issue" has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006. "Deputy Commissioner" means a Deputy Commissioner of Police referred to in section 6. "duties" includes responsibilities. "eligible employee" has the same meaning as in the Superannuation Act 1976. "engages in corrupt conduct" has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006. "federal aspect", in relation to an offence against a law of a State or of the Australian Capital Territory, has the meaning given by subsection 4AA(1). Note: This subsection defines State to include the Northern Territory. "frisk search" means: (a) a search of a person conducted by quickly running the hands over the person's outer garments; and (b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person. "give information" that raises an AFP conduct or practices issue has a meaning affected by subsection (3). "intelligence or security agency" means an authority or person responsible for intelligence gathering for, or the security of, a country or a part of a country. "investigator" for a category 3 conduct issue, or a corruption issue, means the person to whom the issue is allocated for investigation under section 40TN or 40TO. "law enforcement agency" means an authority or person responsible for the enforcement of laws. "manager" for a category 1 conduct issue, or category 2 conduct issue, means the person to whom the issue is allocated in accordance with Commissioner's orders issued for the purposes of subsection 40TA(1). "member" means a member of the Australian Federal Police. "member of the Australian Federal Police" means any of the following: (a) the Commissioner of Police; (b) a Deputy Commissioner of Police; (c) an AFP employee in respect of whom a declaration under section 40B is in force. "member" of the unit constituted under section 40RD means: (a) the AFP appointee appointed as the head of that unit under section 40RE; and (b) any member, or special member, of the Australian Federal Police assigned to that unit under section 40RF. "ordinary search" means a search of a person or of articles in the possession of a person that may include: (a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and (b) an examination of those items. "overseas" means outside Australia and the Territories. "pensioner" means: (a) a person to whom an invalidity pension within the meaning of the Superannuation Act is payable; (b) a person to whom a pension is payable under the Superannuation Act 1922 and who has been retired on the ground of invalidity or of physical or mental incapacity to perform his or her duties; or (c) a person to whom a pension referred to in paragraph (a) or (b) would be payable if payment had not been suspended. "police services" includes services by way of the prevention of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or otherwise. "police support services" means services related to: (a) the provision of police services by an Australian or foreign law enforcement agency; or (b) the provision of services by an Australian or foreign intelligence or security agency; or (c) the provision of services by an Australian or foreign regulatory agency. "powers" includes authorities, rights, privileges and immunities. "practices or procedures" of the Australian Federal Police has the meaning given by subsection 40RI(3). "prohibited drug" means: (a) a narcotic substance (within the meaning of the Customs Act 1901); or (b) any drug specified in a determination under section 4A. "prohibited drug test" means a test of a body sample of a person to determine the presence (if any) of a prohibited drug in the sample. "protective service functions" means the functions designated by the Minister under section 8A. "protective service offence" means any of the following: (a) an offence in relation to a person, place or thing in respect of which the Australian Federal Police is performing protective service functions, being an offence under: (i) section 24AB, 29, 46 (other than paragraph (b)), 47, 47A, 79, 89 or 89A of the Crimes Act 1914; or (ii) the Crimes (Internationally Protected Persons) Act 1976 or Part 2 of the Crimes (Aviation) Act 1991; or (iii) the Defence (Special Undertakings) Act 1952 (other than subsection 31(2)); or (iv) the Public Order (Protection of Persons and Property) Act 1971 (other than section 11); or (v) the Nuclear Non-Proliferation (Safeguards) Act 1987 (other than section 25A, 27 or 28A, subsection 29(2), 29A(1), 30(1), 40(1), 58(2) or 65(1) or section 66); or (va) the Aviation Transport Security Act 2004 or regulations made under that Act; or (vi) section 91.1 of the Criminal Code; (b) an offence against section 6 of the Crimes Act 1914, or section 11.1 or 11.4 of the Criminal Code, that relates to an offence mentioned in paragraph (a); (c) an offence against Subdivision A of Division 72 of the Criminal Code that relates to a person, place or thing in respect of which the Australian Federal Police is performing protective service functions; (d) an offence against Division 101 of the Criminal Code that relates to a person, place or thing in respect of which the Australian Federal Police is performing protective service functions; (e) an offence in relation to a person, place or thing in respect of which the Australian Federal Police is performing protective service functions, being an offence against section 131.1, 141.1, 142.1, 147.1, 148.1 or 149.1 of the Criminal Code. "protective service officer" means an AFP employee in respect of whom a declaration under section 40EA is in force. "regulatory agency" means an authority or person who performs regulatory functions for a country or part of a country. "remedial action" has the meaning given by section 40TD. "resign" means resign from the Australian Federal Police. "retire" means retire from the Australian Federal Police. "senior executive AFP employee" means an AFP employee in respect of whom a declaration under section 25 is in force. "serious misconduct" has the meaning given by section 40K. "special member" means a person appointed under section 40E. "special protective service officer" means a person appointed under section 40EC. "State" includes the Northern Territory. "Superannuation Act" means the Superannuation Act 1976 or the Superannuation Act 1990. "termination action" has the meaning given by section 40TE. "training and development action" has the meaning given by section 40TC. (2) A reference in this Act to an officer of police shall be read as including a reference to a police officer, or to any member of a police force, however described. (3) A reference in Part V to giving information that raises an AFP conduct or practices issue includes a reference to making a complaint or report that raises an AFP conduct or practices issue. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 4AA State offences that have a federal aspect Object (1A) The object of this section is to identify State offences that have a federal aspect because: (a) they potentially fall within Commonwealth legislative power because of the elements of the State offence; or (b) they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or (c) the Australian Federal Police investigating them is incidental to the Australian Federal Police investigating an offence against a law of the Commonwealth or a Territory. State offences that have a federal aspect (1) For the purposes of this Act, a State offence has a federal aspect if, and only if: (a) both: (i) the State offence is not an ancillary offence; and (ii) assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State--the provision would have been a valid law of the Commonwealth; or (b) both: (i) the State offence is an ancillary offence that relates to a particular primary offence; and (ii) assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State--the provision would have been a valid law of the Commonwealth; or (c) assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence--that provision would have been a valid law of the Commonwealth; or (d) both: (i) the Australian Federal Police is investigating a matter relating to a relevant criminal activity that relates to an offence against a law of the Commonwealth or a Territory; and (ii) if the Australian Federal Police is investigating, or were to investigate, a matter relating to a relevant criminal activity that relates to the State offence--that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i). Specificity of acts or omissions (2) For the purposes of paragraph (1)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence). State offences covered by paragraph (1)(c) (3) A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence: (a) affects the interests of: (i) the Commonwealth; or (ii) an authority of the Commonwealth; or (iii) a constitutional corporation; or (b) was engaged in by a constitutional corporation; or (c) was engaged in in a Commonwealth place; or (d) involved the use of a postal service or other like service; or (e) involved an electronic communication; or (f) involved trade or commerce: (i) between Australia and places outside Australia; or (ii) among the States; or (iii) within a Territory, between a State and a Territory or between 2 Territories; or (g) involved: (i) banking (other than State banking not extending beyond the limits of the State concerned); or (ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or (h) relates to a matter outside Australia; or (i) relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or (j) relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern. (4) Subsection (3) does not limit paragraph (1)(c). Definitions (5) In this section: "ancillary offence, in relation to an offence (the primary offence"), means: (a) an offence of conspiring to commit the primary offence; or (b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or (c) an offence of attempting to commit the primary offence. "authority of the Commonwealth" has the same meaning as in section 3AA of the Crimes Act 1914. "Commonwealth place" has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970. "conduct has the same meaning as in the Criminal Code". "constitutional corporation" means a corporation to which paragraph 51(xx) of the Constitution applies. "electronic communication" means a communication of information: (a) whether in the form of text; or (b) whether in the form of data; or (c) whether in the form of speech, music or other sounds; or (d) whether in the form of visual images (animated or otherwise); or (e) whether in any other form; or (f) whether in any combination of forms; by means of guided and/or unguided electromagnetic energy. "engage in conduct has the same meaning as in the Criminal Code". "State" includes the Australian Capital Territory and the Northern Territory. "State offence" means an offence against a law of a State. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 4A Commissioner may specify prohibited drugs The Commissioner may, by written determination, specify drugs for the purposes of the definition of prohibited drug in section 4. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 5 References in other laws (1) In a law of the Commonwealth or of the Australian Capital Territory: (a) a reference to a Commonwealth Police Officer shall be read as a reference to a member of the Australian Federal Police; (b) a reference to the Commonwealth Police Force shall be read as a reference to the Australian Federal Police; (c) a reference to the Police Force of that Territory shall be read as a reference to the Australian Federal Police; (d) a reference to an officer of police of that Territory shall be read as a reference to a member of the Australian Federal Police; and (e) a reference to the Commissioner of Police of that Territory, however described, shall be read as a reference to the Commissioner. (1A) Where a reference in a law of the Commonwealth that does not specify the Australian Capital Territory is, in effect, a reference to, or a reference that includes, that Territory, that reference shall, for the purposes of subsection (1), be taken to be a reference to that Territory. (2) If: (a) a provision of a law is, by virtue of subsection (1), to be read as referring to a member of the Australian Federal Police holding a particular rank; and (b) a declaration is in force under subsection (3) that a member is of that rank for the purposes of this paragraph; the provision of the law is to be read as referring to the member to whom the declaration applies. (3) The Commissioner may, by writing, declare that a member is of a particular rank for the purposes of paragraph (2)(b). AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 5A Application and extension of Act and regulations (1) This Act and the regulations apply throughout the whole of Australia and also outside Australia. (2) This Act and the regulations extend to the external Territories. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 5B Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 6 Constitution of the Australian Federal Police The Australian Federal Police consists of: (a) the Commissioner of Police; and (b) any Deputy Commissioner of Police; and (c) AFP employees; and (d) special members; and (e) special protective service officers. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 8 Functions (1) The functions of the Australian Federal Police are: (a) subject to subsection (1A), the provision of police services in relation to the Australian Capital Territory; and (aa) the provision of police services in relation to the Jervis Bay Territory; and (b) the provision of police services in relation to: (i) laws of the Commonwealth; (ii) property of the Commonwealth (including Commonwealth places) and property of authorities of the Commonwealth; and (iii) the safeguarding of Commonwealth interests; and (baa) the investigation of State offences that have a federal aspect; and (ba) the provision of services in accordance with arrangements entered into under subsection (1C) and doing anything else included in the arrangements that is incidental or conducive to the provision of the services; and (bb) to perform the functions conferred by the Witness Protection Act 1994; and (bc) to perform the functions conferred by a law of a State or Territory that is a complementary witness protection law for the purposes of the Witness Protection Act 1994; and (bd) to perform functions under the Proceeds of Crime Act 2002; and (be) to perform such protective and custodial functions as the Minister directs by notice in writing in the Gazette, being functions that relate to a person, matter or thing with respect to which the Parliament has legislative power; and (bf) the provision of police services and police support services for the purposes of assisting, or cooperating with, an Australian or foreign: (i) law enforcement agency; or (ii) intelligence or security agency; or (iii) government regulatory agency; and (bg) the provision of police services and police support services in relation to establishing, developing and monitoring peace, stability and security in foreign countries; and (c) to do anything incidental or conducive to the performance of the foregoing functions. Note: For State offences that have a federal aspect, see section 4AA. (1A) The Minister and the Australian Capital Territory may enter into arrangements for the provision of the police services in relation to the Australian Capital Territory that are in respect of Territory functions as defined by section 3 of the A.C.T. Self-Government (Consequential Provisions) Act 1988, and, where the arrangements have been entered into, the provision of those services shall be in accordance with the arrangements. (1B) The Minister shall try to enter into the first such arrangement before 1 July 1990. (1C) The Minister and the Administrator of an External Territory may enter into arrangements for the provision of police services and regulatory services in relation to that Territory, and, where the arrangements have been entered into, the provision of those services shall be in accordance with the arrangements. (2) The provision of police services in relation to a Commonwealth place in a State, being services by way of the investigation of offences against the laws of that State having application in relation to that place by virtue of the Commonwealth Places (Application of Laws) Act 1970, shall be in accordance with arrangements made between the Commissioner and the Commissioner of Police (however designated) of that State. (2B) Arrangements for the provision of services under subsection (1A) or (1C) may include arrangements for the doing of anything incidental or conducive to the provision of the services. (3) In this section: "Commonwealth place" has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 8A Minister may direct which functions are protective service functions The Minister may, by notice published in the Gazette, direct that certain protective and custodial functions of the Australian Federal Police are protective service functions. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 9 Laws conferring powers on members (1) In addition to any other powers and duties, a member has: (a) the powers and duties that are conferred or imposed by or under a law of the Commonwealth on: (i) a constable; or (ii) a constable of a particular rank, if a declaration under subsection (2A) is in force that the member is of that rank for the purposes of this subparagraph; and (b) when performing functions in the Australian Capital Territory--the powers and duties conferred or imposed on a constable or on an officer of police by or under any law (including the common law) of the Territory; and (ba) when performing functions in the Jervis Bay Territory--the powers and duties conferred or imposed on a constable or an officer of police by or under any law (including the common law) of the Territory; and (bb) when performing functions in an External Territory--the powers and duties conferred or imposed on a constable or an officer of police by or under any law (including the common law) of the Territory; and (bc) when performing functions in the Northern Territory: (i) the powers and duties conferred or imposed on a constable or an officer of police by or under any law (including the common law) of the Territory; and (ii) any powers and duties conferred on the member by virtue of his or her appointment as a Special Constable of the Police Force of the Northern Territory by or under a law of the Territory; and (c) in relation to the following: (i) the laws of the Commonwealth; (ii) matters in connection with property of the Commonwealth or of an authority of the Commonwealth; (iii) matters arising on or in connection with land or premises owned or occupied by the Commonwealth or an authority of the Commonwealth; (iv) the safeguarding of Commonwealth interests; (iva) the investigation of State offences that have a federal aspect; the powers and duties that are conferred or imposed, in the place in which the member is acting, on: (v) a constable or an officer of police; or (vi) a constable, or an officer of police, of a particular rank, if a declaration under subsection (2B) is in force that the member is of that rank for the purposes of this subparagraph. (2) Where any provisions of a law of a State apply in relation to offences against the laws of the Commonwealth or of a Territory, those provisions so apply as if: (a) any reference in those provisions to a constable or to an officer of police included a reference to a member; and (b) if a declaration is in force under subsection (2B) that a member is of a particular rank for the purposes of this paragraph--any reference in those provisions to an officer of police of that rank included a reference to the member. (2A) The Commissioner may, by writing, declare that a member is of a particular rank for the purposes of subparagraph (1)(a)(ii). (2B) The Commissioner may, by writing, declare that a member is of a particular rank (the State law rank) for the purposes of subparagraph (1)(c)(vi) or paragraph (2)(b) if: (a) a declaration is in force under subsection (2A) that the member is of a particular rank (the Commonwealth law rank); and (b) the Commissioner considers the State law rank is equivalent to the Commonwealth law rank. (2C) Unless it ceases to be in force sooner, a declaration under subsection (2B) ceases to be in force when the declaration under subsection (2A) ceases to be in force. (3) In paragraph (1)(a): "constable" includes a member of the Police Force of a State or Territory. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 11 State and Territory writs and warrants Where a writ or warrant is issued under the law of a State or Territory in relation to an offence or other matter under a law of the Commonwealth or of a Territory, the writ or warrant may be executed by a member, notwithstanding that it is not addressed to a member and notwithstanding any requirement of the law of the State or Territory as to the person by whom it may be executed. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 12 Immunities from certain State and Territory laws The Commissioner, a Deputy Commissioner or an AFP employee is not required under, or by reason of, a law of a State or Territory: (a) to obtain or have a licence or permission for doing any act or thing in the exercise of his or her powers or the performance of his or her duties as the Commissioner, a Deputy Commissioner or an AFP employee; or (b) to register any vehicle, vessel, animal or article belonging to the Commonwealth. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 12A Immunity from State and Territory laws in relation to entry etc. of police dogs on premises etc. (1) In this section: "AFP dog" means a police dog or a protective service dog that is used by the Australian Federal Police. "AFP dog handler" means a member or a protective service officer whose duties as a member or a protective service officer include the duties of an AFP dog handler. "protective service dog" means a dog used or trained to assist protective service officers. (2) Where an AFP dog handler is entitled to enter, or to be on or in, particular premises or a particular place in the performance of the AFP dog handler's duties as a member or a protective service officer, the AFP dog handler is entitled, in entering, or being on or in, the premises or place, to be accompanied by an AFP dog under the control of the AFP dog handler. (3) The Commonwealth, a member or a protective service officer is not subject to any penalty, liability or forfeiture by reason only of an AFP dog having entered, or having been on or in, particular premises or a particular place if: (a) the AFP dog is under the control of an AFP dog handler; (b) the AFP dog handler is performing the AFP dog handler's duties as a member or protective service officer; and (c) the AFP dog handler is entitled to enter, or to be on or in, the premises or place. (4) In any proceeding, a certificate in writing signed by the Commissioner certifying that: (a) a specified member or specified protective service officer is, or was at a specified time, an AFP dog handler within the meaning of this section; or (b) a specified dog is, or was at a specified time, an AFP dog within the meaning of this section; is prima facie evidence of the fact or facts certified. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 14A Powers of arrest A protective service officer may, without warrant, arrest a person for a protective service offence if the protective service officer believes on reasonable grounds that: (a) the person has just committed, or is committing, the offence; and (b) the arrest of the person is necessary for the purpose of: (i) ensuring the appearance of the person before a court of competent jurisdiction for the offence; or (ii) preventing the continuation of, or a repetition of, the offence or the commission of a further protective service offence; or (iii) preventing the concealment, loss or destruction of evidence of, or relating to, the offence; or (iv) preserving the safety or welfare of the person; and (c) proceedings by way of summons against the person for the offence would not achieve such a purpose. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 14B Use of force in making arrest etc. (1) A protective service officer must not, in arresting or attempting to arrest a person for an offence or in preventing a person who has been arrested for an offence from escaping, use more force, or subject the person to greater indignity, than is reasonable and necessary in order to make the arrest or prevent the escape of the person. (2) Without limiting the generality of subsection (1), a protective service officer must not, in arresting or attempting to arrest a person for an offence or in preventing a person who has been arrested for an offence from escaping, do an act likely to cause death or grievous bodily harm to the person unless the officer believes on reasonable grounds that the doing of the act is necessary to protect life or prevent serious injury to the officer or any other person. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 14C Arrested person to be informed of grounds of arrest (1) A protective service officer who arrests a person for an offence must inform the person, at the time of the arrest, of the offence for which the person is arrested. (2) It is sufficient compliance with subsection (1) if the protective service officer informs the person of the substance of the offence, and it is not necessary to do so in language of a precise or technical nature. (3) Subsection (1) does not apply to the arrest by a protective service officer of a person for an offence if the person, by his or her own actions, makes it impracticable for the protective service officer to inform the person of the offence. (4) Where a protective service officer who arrests a person for an offence believes or has reasonable grounds for believing that the person is unable, by reason of inadequate knowledge of the English language or any physical or mental disability, to understand the substance of the offence for which the person is arrested, the protective service officer must, as soon as practicable, take all reasonable steps to ensure that the person is provided with an explanation of the substance of the offence that the person is able to understand. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 14D Search of arrested person (1) A protective service officer may, upon lawfully arresting a person for an offence: (a) conduct an ordinary search or a frisk search of the person; and (b) search the clothing that the person is wearing and any vessel, vehicle or other property under the person's immediate control if the officer believes on reasonable grounds that it is necessary to do so; for the purpose of: (c) ascertaining whether there is concealed on the person, in the clothing or in the property, a weapon or other thing capable of being used to inflict bodily injury or to assist the person to escape from custody; or (d) preventing the concealment, loss or destruction of evidence of, or relating to, the offence. (2) If the protective service officer is not of the same sex as the arrested person, an ordinary search or a frisk search of the arrested person for the purposes of subsection (1) may be conducted by: (a) if a protective service officer, a member or a special member of the same sex as the arrested person is reasonably available to conduct the search--that protective service officer, member or special member; or (b) if paragraph (a) does not apply but a police officer or an officer of Customs (within the meaning of subsection 4(1) of the Customs Act 1901) who is of the same sex as the arrested person is reasonably available to conduct the search--that police officer or officer of Customs; or (c) otherwise--any other person who is of the same sex as the arrested person and who is requested by the protective service officer to conduct the search. (3) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of a protective service officer, conducts a search under this section if the person acts in good faith and does not contravene subsection (4). (4) A protective service officer or other person who conducts a search under this section must not use more force, or subject an arrested person to greater indignity, than is reasonable and necessary in order to conduct the search. (5) A protective service officer or other person who lawfully conducts a search under this section may seize: (a) any weapon or thing mentioned in paragraph (1)(a); or (b) anything that the officer or other person has reasonable grounds to believe is a thing: (i) with respect to which an offence has been committed; or (ii) that will afford evidence of the commission of an offence; or (iii) that was used, or intended to be used, for the purpose of committing an offence. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 14E How arrested person to be dealt with (1) A protective service officer who arrests a person for an offence must ensure that the person is delivered into the custody of a police officer as soon as practicable to be dealt with according to law. (2) Where a weapon or other thing has been seized from the person under subsection 14D(5), the protective service officer must ensure that the weapon or other thing is delivered to the police officer into whose custody the person is delivered. (3) In this section: "police officer" means: (a) a member or special member; or (b) a member, however described, of a police force of a State or Territory; or (c) a member, however described, of a police force of a foreign country. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 14F Release of arrested person Where: (a) a person has been arrested by a protective service officer for an offence; and (b) the person is in the custody of the protective service officer or another protective service officer; and (c) the protective service officer who has the custody of the person: (i) ceases to have reasonable grounds for believing that the person committed, or was committing, an offence; or (ii) ceases to have reasonable grounds for believing that the holding of the person in custody is necessary in order to achieve a purpose mentioned in paragraph 14A(b), and does not have reasonable grounds for believing that the holding of the person in custody is necessary in order to achieve any other purpose mentioned in that paragraph; or (iii) ceases to have reasonable grounds for believing that proceedings by way of summons against the person for the offence would not achieve a purpose mentioned in paragraph 14A(b), and does not have reasonable grounds for believing that proceedings by way of summons against the person for the offence would not achieve any other purpose mentioned in that paragraph; the protective service officer must release the person from custody in respect of the offence as soon as practicable. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 14G Relationship of Division to other laws (1) The power of arrest conferred by section 14A on protective service officers is in addition to, and not in derogation of, powers of arrest available to protective service officers under any other law of the Commonwealth or the law of a State or Territory. (2) Subject to subsection (3), where a protective service officer, in the course of his or her duties as a protective service officer, arrests a person for any offence (whether the arrest is made under section 14A, under any other law of the Commonwealth or under the law of a State or Territory), sections 14B to 14F apply in relation to the arrest despite any other law of the Commonwealth or the law of a State or Territory. (3) Subsection (2) has effect subject to sections 252 and 253 of the Migration Act 1958. (4) Subject to subsection (2), the powers conferred, and duties imposed, by this Division on protective service officers are in addition to, and not in derogation of, any other powers conferred, or duties imposed, by any other law of the Commonwealth or the law of a State or Territory, and this Division is not intended to exclude or limit the operation of any other law of the Commonwealth or the law of a State or Territory providing for such powers or duties in so far as it is capable of operating concurrently with this Division. (5) This Division, in so far as it protects the individual, is in addition to, and not in derogation of, any rights and freedoms of the individual, whether under the law of the Commonwealth or of a State or Territory, and this Division is not intended to exclude or limit the operation of any law of the Commonwealth or of a State or Territory providing for those rights and freedoms in so far as it is capable of operating concurrently with this Division. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 14H Definitions In this Division: "designated person" means: (a) a member or special member; or (b) a protective service officer. "police officer" means: (a) a member or special member; or (b) a member, however described, of a police force of a State or Territory; or (c) a member, however described, of a police force of a foreign country. "vehicle" includes any means of transport (and, without limitation, includes a vessel and an aircraft). AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 14I Requirement to provide name etc. (1) If: (a) a designated person suspects on reasonable grounds that a person (the suspect) might have just committed, might be committing, or might be about to commit, a protective service offence; and (b) the suspect is in a place, or in the vicinity of a place, person or thing, in respect of which the Australian Federal Police is performing protective service functions; the designated person may request the suspect to provide to the designated person: (c) the suspect's name; and (d) the suspect's residential address; and (e) the suspect's reason for being in the place, or in the vicinity of the place, person or thing, in respect of which the Australian Federal Police is performing protective service functions; and (f) evidence of the suspect's identity. (2) If a designated person: (a) makes a request under subsection (1); and (b) informs the suspect of the designated person's authority to make the request; and (c) informs the suspect that it may be an offence not to comply with the request; the suspect must not: (d) fail to comply with the request; or (e) give a name or address that is false in a material particular. Penalty: 20 penalty units. Note: A more serious offence of obstructing a Commonwealth public official may also apply (see section 149.1 of the Criminal Code). (3) Subsection (2) does not apply if the suspect has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code). AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 14J Stopping and searching When this section applies (1) This section applies if a designated person suspects on reasonable grounds that: (a) a person (the suspect): (i) has a thing under the suspect's immediate control; or (ii) is occupying a thing; or (iii) has a thing in a vehicle operated or occupied by the suspect; or (iv) has brought a thing onto premises at which the Australian Federal Police is performing protective service functions; and (b) the thing is likely to cause, or is likely to be used by the suspect or another to cause: (i) substantial damage to a place or a thing in respect of which the Australian Federal Police is performing protective service functions; or (ii) death or serious harm to a person in respect of whom the Australian Federal Police is performing protective service functions; in circumstances that would be likely to involve the commission of a protective service offence. Designated person may stop and search suspect (2) The designated person may: (a) stop and detain the suspect for the purpose of searching for the thing; and (b) do any or all of the following for the purpose of searching for the thing: (i) if the designated person is of the same sex as the suspect--conduct an ordinary search or a frisk search of the suspect; (ii) search any thing under the suspect's immediate control; (iii) search any vehicle operated or occupied by the suspect. Conditions relating to conduct of search of suspect (3) If the designated person is not of the same sex as the suspect, an ordinary search or a frisk search of the suspect for the purpose of searching for the thing may be conducted by: (a) if another designated person of the same sex as the suspect is reasonably available to conduct the search--that designated person; or (b) if paragraph (a) does not apply but a police officer or an officer of Customs (within the meaning of subsection 4(1) of the Customs Act 1901) who is of the same sex as the suspect is reasonably available to conduct the search--that police officer or officer of Customs; or (c) otherwise--any other person: (i) who is of the same sex as the suspect; and (ii) who is requested by the designated person to conduct the search; and (iii) who consents to conduct the search. (4) If a designated person requests an officer of Customs or another person to conduct a search of a suspect, the designated person must explain to the officer of Customs or the other person: (a) if the search requested is an ordinary search--the meaning of an ordinary search; and (b) if the search requested is a frisk search--the meaning of a frisk search; and (c) that the officer of Customs or the other person must not use more force, or subject a suspect to greater indignity, than is reasonable and necessary in order to conduct the search. (5) An action or proceeding, whether civil or criminal, does not lie against a person who conducts a search under paragraph (3)(b) or (c) if the person acts in good faith and does not contravene subsection (6). (6) A designated person or other person who conducts a search of a suspect under this section must not use more force, or subject a suspect to greater indignity, than is reasonable and necessary in order to conduct the search. (7) A suspect must not be detained under this section for longer than is reasonably necessary for a search to be conducted under this section. Designated person may search a thing (8) If subparagraph (1)(a)(iv) applies, the designated person may, for the purpose of searching for the thing mentioned in that subparagraph, search a thing that the designated person suspects on reasonable grounds was brought by the suspect onto premises at which the Australian Federal Police is performing protective service functions. Other conditions relating to conduct of search of suspect or thing (9) In searching a thing under subsection (2) or (8), the designated person may use such force as is reasonable and necessary in the circumstances, but must not damage the thing by forcing it, or a part of it, open unless: (a) if the search is under subsection (2)--the suspect has been given a reasonable opportunity to open the thing or part of it; or (b) if the search is under subsection (8)--the person (if any) apparently in charge of the thing has been given a reasonable opportunity to open the thing or part of it; or (c) it is not possible to give that opportunity. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 14K Seizure of things found Designated person may seize a thing being searched for (1) If, as a result of conducting a search under section 14J, a designated person, or a person who conducted the search under subsection 14J(3) on behalf of a designated person, finds the thing for which the designated person or person was searching, the designated person may seize the thing. Designated person may seize a dangerous thing (2) If, as a result of conducting a search under section 14J, a designated person, or a person who conducted the search under subsection 14J(3) on behalf of a designated person, finds a weapon, or other thing, that the designated person suspects on reasonable grounds is likely to be used by the suspect or another to cause death or serious harm to a person: (a) in respect of whom the Australian Federal Police is performing protective service functions; or (b) who is in a place, or in the vicinity of a person, place or thing, in respect of which the Australian Federal Police is performing protective service functions; the designated person may seize the weapon or thing. Protective service officer must deliver thing seized to police officer (3) If the designated person is a protective service officer, the designated person must ensure that the thing is delivered into the custody of a police officer as soon as practicable. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 14L How seized things must be dealt with Seizure notice to be served (1) A police officer who is for the time being responsible for a thing seized under section 14K must, within 7 days after the seizure day, serve a seizure notice on: (a) the owner of the thing; or (b) if the owner of the thing cannot be identified after reasonable inquiries--the person from whom the thing was seized. (2) Subsection (1) does not apply if: (a) both: (i) the owner of the thing cannot be identified after reasonable inquiries; and (ii) the thing was not seized from a person; or (b) it is not possible to serve the person required to be served under subsection (1). (3) A seizure notice must: (a) identify the thing; and (b) state the date on which the thing was seized; and (c) state the ground or grounds on which the thing was seized; and (d) state that, if the owner does not request the return of the thing within 90 days after the date of the notice, the thing is forfeited to the Commonwealth. Return of thing seized (4) The owner of a thing seized under section 14K may request the return of the thing. (5) A police officer who is for the time being responsible for a thing seized under section 14K must return the thing to its owner if: (a) the owner requests the return of the thing; and (b) in the case of a thing seized under subsection 14K(1)--the police officer does not suspect on reasonable grounds that, if the thing is returned to the owner, the thing is likely to cause, or is likely to be used by the owner or another to cause: (i) substantial damage to a place or thing in respect of which the Australian Federal Police is performing protective service functions; or (ii) death or serious harm to a person in respect of whom the Australian Federal Police is performing protective service functions; in circumstances that would be likely to involve the commission of a protective service offence; and (c) in the case of a thing seized under subsection 14K(2)--the police officer does not suspect on reasonable grounds that, if the thing is returned to the owner, the thing is likely to be used by the owner or another to cause death or serious harm to a person: (i) in respect of whom the Australian Federal Police is performing protective service functions; or (ii) who is in a place, or in the vicinity of a person, place or thing, in respect of which the Australian Federal Police is performing protective service functions. Forfeiture of thing seized (6) A thing is forfeited to the Commonwealth if the owner of the thing does not request its return: (a) before the end of the 90th day after the date of the seizure notice in relation to the thing; or (b) if subsection (2) applied in relation to the thing so that a seizure notice was not served--before the end of the 90th day after the seizure day. Application to magistrate (7) If: (a) the owner of a thing requests the return of the thing: (i) within 90 days after the date of the seizure notice in relation to the thing; or (ii) if subsection (2) applied in relation to the thing so that a seizure notice was not served--within 90 days after the seizure day; and (b) the thing has not been returned to the owner by the end of the 90th day; the police officer who is for the time being responsible for the thing must, before the end of the 95th day: (c) return the thing to the owner; or (d) apply to a magistrate for an order under section 14M. Seizure day (8) In this section: "seizure day" means: (a) in relation to a thing seized by a designated person who is a protective service officer--the day on which the thing was delivered into the custody of a police officer under subsection 14K(3); or (b) in relation to a thing seized by a designated person who is a member or a special member--the day on which the thing was seized. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 14M Application to magistrate (1) If subsection 14L(7) applies, the police officer may apply to a magistrate for an order in relation to the thing to which that subsection applies. (2) The magistrate must, in determining an application by a police officer under subsection (1), allow the owner of the thing to appear and be heard. (3) If the magistrate is satisfied that: (a) in the case of a thing seized under subsection 14K(1)--there are reasonable grounds to suspect that, if the thing is returned to the owner, the thing is likely to cause, or is likely to be used by the owner or another to cause: (i) substantial damage to a place or thing in respect of which the Australian Federal Police is performing protective service functions; or (ii) death or serious harm to a person in respect of whom the Australian Federal Police is performing protective service functions; in circumstances that would be likely to involve the commission of a protective service offence; or (b) in the case of a thing seized under subsection 14K(2)--there are reasonable grounds to suspect that, if the thing is returned to the owner, the thing is likely to be used by the owner or another to cause death or serious harm to a person: (i) in respect of whom the Australian Federal Police is performing protective service functions; or (ii) who is in a place, or in the vicinity of a person, place or thing, in respect of which the Australian Federal Police is performing protective service functions; the magistrate may make any of the following orders: (c) that the thing be retained by the police officer for the period specified in the order; (d) that the thing is forfeited to the Commonwealth; (e) that the thing is to be sold and the proceeds given to the owner; (f) that the thing is to be otherwise sold or disposed of. (4) If the magistrate is not satisfied as mentioned in subsection (3), the magistrate must order that the thing be returned to the owner. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 14N Relationship of Division to other laws The powers conferred, and duties imposed, by this Division on protective service officers, members and special members are in addition to, and not in derogation of, any other powers conferred, or duties imposed, by any other law of the Commonwealth or the law of a State or Territory, and this Division is not intended to exclude or limit the operation of any other law of the Commonwealth or the law of a State or Territory in so far as it is capable of operating concurrently with this Division. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 17 Commissioner and Deputy Commissioners (1) The Commissioner of Police and one or more Deputy Commissioners of Police shall be appointed by the Governor-General by Commission. (2) Subject to this Part, the Commissioner holds office for such period, not exceeding 7 years, as is specified in his or her instrument of appointment, but is eligible for re-appointment. (3) Subject to this Part, a Deputy Commissioner holds office for the period, not exceeding 5 years, specified in the instrument of appointment, but is eligible for re-appointment. (3A) Where a person is re-appointed under this section for a term beginning immediately after the end of the person's last appointment, the person's service is to be taken to be continuous. (4) The Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor-General. (4A) A Deputy Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Commissioner. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 18 Acting Commissioner and Deputy Commissioner during vacancy (1) At any time when the office of Commissioner or an office of Deputy Commissioner is or is expected to be vacant (whether or not the office has previously been filled), the Minister may appoint a person to act as Commissioner or as a Deputy Commissioner, as the case may be, until the filling of the vacancy, but a person so appointed shall not continue so to act for more than 12 months. (2) While a person is acting as Commissioner or as a Deputy Commissioner under subsection (1), he or she has, and may exercise, all the powers (except a power to make a declaration under subsection 40D(4)), and shall perform all the functions and duties, of the Commissioner or of the Deputy Commissioner, as the case may be. (3) The Minister may: (a) determine the terms and conditions of appointment, including remuneration and allowances, of a person appointed under this section; and (b) at any time terminate such an appointment. (4) The appointment of a person under this section ceases to have effect if he or she resigns the appointment by writing signed by him or her and delivered to the Minister. (5) The validity of anything done by a person purporting to act in accordance with this section shall not be called in question by reason of any defect or irregularity in or in connection with his or her appointment or on the ground that the occasion for his or her so acting had not arisen or had ceased. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 19 Absence etc. of Commissioner or Deputy Commissioner (1) At any time when the Commissioner or a Deputy Commissioner is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the Commissioner or a Deputy Commissioner, as the case may be, the next most senior member who is available has, and may exercise, all the powers (except a power to make a declaration under subsection 40D(4)), and shall perform all the functions and duties, of the Commissioner or the Deputy Commissioner, as the case may be. (1A) The Minister may determine the remuneration and allowances of a person who exercises the powers, and performs the functions and duties, of the Commissioner under subsection (1). (1B) The Commissioner may determine the remuneration and allowances of a person who exercises the powers, and performs the functions and duties, of a Deputy Commissioner under subsection (1). (1C) A person is not entitled to be paid remuneration or allowances under this section for exercising the powers, and performing the functions and duties, of the Commissioner or a Deputy Commissioner for less than one week. (2) The exercise of the powers and the performance of the functions and duties of the Commissioner or of a Deputy Commissioner by a member under this section does not affect the exercise of any power or the performance of any function or duty by the Commissioner or by the Deputy Commissioner, as the case may be. (3) The validity of anything done by a person purporting to act in accordance with this section shall not be called in question on the ground that the occasion for his or her so acting had not arisen or had ceased. (4) For the purposes of subsection (1), the order of seniority of members is as determined by the Commissioner. (5) In this section, except so far as the contrary intention appears, a reference to the Commissioner or to a Deputy Commissioner shall be read as including a reference to an acting Commissioner or acting Deputy Commissioner, as the case may be, appointed under section 18. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 20 Remuneration and allowances (1) The Commissioner shall be paid such remuneration as is determined by the Remuneration Tribunal, but if no determination of that remuneration is in operation, he or she shall be paid such remuneration as is prescribed. (2) The Commissioner shall be paid such allowances as are prescribed. (2A) A Deputy Commissioner is to be paid such remuneration and allowances as the Commissioner determines in writing. (3) This section has effect subject to the Remuneration Tribunal Act 1973. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 21 Leave of absence (1) The Commissioner has such recreation leave entitlements as are determined by the Remuneration Tribunal. (1A) The Minister may grant the Commissioner leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines. (2) The Commissioner may grant leave of absence to a Deputy Commissioner on such terms and conditions as to remuneration or otherwise as the Commissioner determines. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 22 Termination of appointment (1) The Governor-General may terminate the appointment of the Commissioner or a Deputy Commissioner by reason of misbehaviour or physical or mental incapacity. (2) If the Commissioner or a Deputy Commissioner: (a) engages in paid employment outside the duties of his or her office without the approval of the Minister; (b) is absent from duty, except on leave of absence under section 21, for 14 consecutive days, or for 28 days in any 12 months; or (c) becomes bankrupt or applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; the Governor-General shall terminate his or her appointment. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 23 Employer powers etc. of Commissioner (1) The Commissioner, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of AFP employees. (2) Without limiting subsection (1), the Commissioner has, in respect of AFP employees, the rights, duties and powers that are prescribed by the regulations. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 24 Engagement of AFP employees (1) The Commissioner, on behalf of the Commonwealth, may, by writing, engage persons as employees. Engagement may be made subject to conditions (2) The engagement of an AFP employee may be made subject to conditions notified to the employee, including conditions dealing with any of the following matters: (a) probation; (b) citizenship; (c) formal qualifications; (d) security and character clearances; (e) health clearances; (f) secrecy requirements. (3) Subsection (2) does not, by implication, limit the conditions that may be applied to the engagement of an AFP employee. Non-Australian citizen (4) The Commissioner must not engage, as an AFP employee, a person who is not an Australian citizen, unless the Commissioner considers it appropriate to do so. This section has no application to overseas engagement (5) This section does not apply to the engagement of persons overseas to perform duties overseas as employees. Note: Section 69A deals with the engagement of such persons. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 25 Senior executive AFP employees The Commissioner may, by writing, declare an AFP employee to be a senior executive AFP employee. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 26 Continuous employment For the purposes of the Long Service Leave (Commonwealth Employees) Act 1976 and any other law of the Commonwealth, if: (a) a person is engaged as an AFP employee under section 24 for a period; and (b) the person completes that period of engagement (the initial period); and (c) the person is re-engaged under that section for a further period starting immediately after the end of the initial period; the person's employment is taken to be continuous from the beginning of the initial period until the end of the re-engagement. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 27 Remuneration and other conditions (1) The Commissioner may from time to time determine in writing the remuneration and other terms and conditions of employment applying to an AFP employee, other than: (a) terms and conditions of employment that the Commissioner may determine under subsection 40H(2); or (b) accommodation arrangements that are to apply to an AFP employee, and allowances an AFP employee is to be paid, while the employee is performing duties of the kind covered by paragraph 40H(3)(b). Application etc. of industrial instrument (2) A determination under subsection (1) may apply, adopt or incorporate, with or without modification, any of the provisions of an industrial instrument, as in force at a particular time or as in force from time to time. Industrial instrument prevails over a determination under subsection (1) (3) An industrial instrument overrides any determination under subsection (1), to the extent of any inconsistency. Interpretation (4) In this section: "industrial instrument" means any of the following instruments within the meaning given by the Workplace Relations Act 1996: (a) a workplace agreement; (b) an award or a variation or order affecting an award; (c) a transitional award or a variation or order affecting a transitional award; (d) a pre-reform AWA; (e) a pre-reform certified agreement; (f) an AWA. Note: A determination under section (1) must not provide less than the minimum entitlements of employment under the Australian Fair Pay and Conditions Standard, within the meaning given by the Workplace Relations Act 1996. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 28 Termination of employment by Commissioner The Commissioner may at any time, by notice in writing, terminate the employment of an AFP employee. Note: The Workplace Relations Act 1996 has rules that apply to termination of employment. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 30 Resignation (1) An AFP employee may resign from the Australian Federal Police if, and only if: (a) he or she gives written notice to the Commissioner of his or her resignation and the notice specifies, in accordance with subsection (2), the day his or her resignation is to take effect; or (b) his or her resignation is in accordance with regulations under paragraph 70(g) (about resigning for the purpose of becoming a candidate at certain elections). Limitation (2) The day specified in a notice under paragraph (1)(a) must not: (a) be earlier than 14 days, or such shorter period as the Commissioner allows; or (b) be later than 4 months; after the day on which the notice is given to the Commissioner. (3) Paragraph (1)(a) is subject to section 30A. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 30A Resignation in anticipation of termination of employment (1) This section applies if: (a) an AFP employee gives the Commissioner written notice of his or her resignation under paragraph 30(1)(a); and (b) the employee's conduct: (i) has been, or is being, investigated as an AFP conduct issue that is a category 3 conduct issue; or (ii) has raised a corruption issue that has been investigated; or (iii) raises a corruption issue that is being investigated; and (c) at least one of the following applies: (i) if the investigation has been completed--the Commissioner is considering terminating the employee's employment under section 28 on the basis of the findings of the investigation; (ii) if the investigation has not been completed--the Commissioner is not in a position to decide whether to terminate the employee's employment under section 28 because the findings of the investigation are not yet known; (iii) the Commissioner is satisfied that the employee's conduct may amount to serious misconduct within the meaning of subsection 40K(3). (2) The Commissioner may, by written notice to the AFP employee, substitute a day, no later than 90 days after the day specified in the employee's notice of resignation, as the day on which his or her resignation is to take effect. (3) The Commissioner may give more than one notice under subsection (2) to the AFP employee in relation to the notice of resignation. (4) To be effective, the first notice given under subsection (2) in relation to the notice of resignation must be given to the employee before the day specified in the notice of resignation. (5) To be effective, any subsequent notice given under subsection (2) in relation to the notice of resignation must be given to the employee before the day specified in the immediately preceding notice given under that subsection in relation to the notice of resignation. (6) On or before the day specified in the most recent notice given under subsection (2) in relation to the notice of resignation, the Commissioner must: (a) accept the AFP employee's notice of resignation; or (b) terminate the AFP employee's employment under section 28. (7) If the Commissioner accepts the notice of resignation under paragraph (6)(a), the AFP employee's resignation takes effect on the day on which the Commissioner communicates acceptance of the resignation to the employee. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 31 Retirement upon reaching minimum retiring age (1) An AFP employee who has reached the minimum retiring age is entitled to retire at any time by notice in writing to the Commissioner. Minimum retiring age (2) For the purposes of this section, the minimum retiring age is 55 years, or such higher or lower age as is prescribed by the regulations. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 32 Retirement on invalidity grounds Retirement of AFP employee by Commissioner (1) If the Commissioner is satisfied that an AFP employee should be retired because of physical or mental incapacity, the Commissioner may retire the employee by notice in writing given to the employee. AFP employee consents to retirement (2) Before the Commissioner retires an AFP employee under subsection (1), the employee may, by notice in writing given to the Commissioner, consent to the Commissioner retiring the employee under that subsection. Note: To find out when an AFP employee's retirement takes effect in such a case, see section 33. AFP employee not re-engaged because of invalidity (3) If: (a) a person is engaged as an AFP employee under section 24 for a period; and (b) the person completes that period of engagement (the initial period); and (c) the person is not re-engaged under that section for a further period starting immediately after the end of the initial period; and (d) the Commissioner certifies in writing that the person's physical or mental incapacity was the only reason why the person was not so re-engaged; the person is taken, for the purposes of the Safety, Rehabilitation and Compensation Act 1988, the Superannuation Act and the Superannuation Act 2005, to have been retired under this section on the day on which the initial period ended. AFP employee is an eligible employee under the Superannuation Act 1976 (4) In spite of this section, an AFP employee who: (a) is an eligible employee for the purposes of the Superannuation Act 1976; and (b) has not reached his or her maximum retiring age (within the meaning of that Act); is not capable of being retired on the ground of invalidity (within the meaning of Part IVA of that Act) unless the Board (within the meaning of that Act) has given a certificate under section 54C of that Act. AFP employee is a member of the superannuation scheme under the Superannuation Act 1990 (5) In spite of this section, an AFP employee who: (a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and (b) is under 60 years of age; is not capable of being retired on the ground of invalidity (within the meaning of that Act) unless the Board (within the meaning of that Act) has given a certificate under section 13 of that Act. AFP employee is an ordinary employer-sponsored member under the Superannuation Act 2005 (6) In spite of this section, an AFP employee who: (a) is an ordinary employer-sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and (b) is under 60 years of age; is not capable of being retired on the ground of invalidity (within the meaning of that Act) unless the Board (within the meaning of that Act) has given an approval and certificate under section 43 of that Act. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 33 Time when retirement on invalidity grounds takes effect AFP employee consents to retirement (1) If an AFP employee has consented to being retired under subsection 32(1), the employee's retirement takes effect on the day specified in the notice under that subsection. The day specified must not be before the day on which the notice is given to the employee. AFP employee does not consent to retirement (2) If an AFP employee who is retired under subsection 32(1) has not consented to being retired under that subsection: (a) the notice given to the employee under that subsection must inform the employee that the employee is entitled to apply, within the period, and in the manner, prescribed by the regulations, for review of the Commissioner's decision to retire the employee; and (b) subject to the outcome of any such review, the employee's retirement takes effect on a day specified in the notice. (3) The day specified in the notice must not be before the end of the period mentioned in paragraph (2)(a). Regulations (4) The regulations may make provision in relation to the review of decisions of the Commissioner to retire AFP employees under subsection 32(1), where the employees have not consented to being retired under that subsection, including: (a) the period within which, and the manner in which, AFP employees may apply for review of such decisions; and (b) the powers available to a person or body conducting such a review; and (c) if the regulations make provision for a person or body conducting such a review to make recommendations to the Commissioner--the Commissioner giving effect to such recommendations by confirming or revoking such decisions. (5) Despite section 25D of the Acts Interpretation Act 1901, if regulations under subsection (4) make provision for a person or body conducting a review of decisions of a kind mentioned in that subsection to: (a) give written reasons for any decision the person or body makes in relation to such a review; and (b) give a copy of those reasons to the AFP employee concerned; the regulations may also make provision in relation to: (c) the exclusion from that copy of any information of a medical or psychiatric nature that the person or body thinks may be prejudicial to the employee's physical or mental health or well-being; and (d) the employee nominating a medical practitioner to receive that information. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 34 Voluntary retirement for the purposes of the Superannuation Act Resignation (1) If: (a) an AFP employee resigns from the Australian Federal Police in accordance with section 30; and (b) the resignation takes effect on or after the day on which he or she reaches 55 but before he or she reaches 60; he or she is taken, for the purposes of the Superannuation Act, to have retired voluntarily. Termination of employment (2) If: (a) an AFP employee's employment is terminated under section 28; and (b) the termination takes effect on or after the day on which he or she reaches 55 but before he or she reaches 60; he or she is taken, for the purposes of the Superannuation Act, to have retired voluntarily. Period of employment ends (3) If: (a) a person is engaged as an AFP employee under section 24 for a period; and (b) the person completes that period of engagement (the initial period); and (c) the person is not re-engaged under that section for a further period starting immediately after the end of the initial period; and (d) the initial period ends on or after the day on which he or she reaches 55 but before he or she reaches 60; he or she is taken, for the purposes of the Superannuation Act, to have retired voluntarily. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 35 Commissioner may engage consultants or independent contractors (1) The Commissioner may, under written agreements, engage persons as consultants, or independent contractors, to perform services. (2) The Commissioner may determine, in writing, that a consultant, or independent contractor, specified in the determination is to be an AFP appointee for the purposes of paragraph (f) of the definition of AFP appointee in subsection 4(1). (3) A determination under subsection (2) is not a legislative instrument. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 36 Undertakings and oaths or affirmations Commissioner (1) A person appointed as the Commissioner must, before commencing to perform his or her duties, make and subscribe, before a person authorised by the Minister, such oath or affirmation as is prescribed by the regulations. Deputy Commissioner (2) A Deputy Commissioner appointed under section 17 must, immediately after his or her appointment: (a) enter into an undertaking, in accordance with the form prescribed by the regulations, relating to the performance of his or her duties; and (b) make and subscribe, before the Commissioner, such oath or affirmation as is prescribed by the regulations. Members (3) A person declared to be a member under section 40B must, immediately after the declaration: (a) enter into an undertaking, in accordance with the form prescribed by the regulations, relating to the performance of his or her duties; and (b) make and subscribe, before the Commissioner or a person authorised by the Commissioner, such oath or affirmation as is prescribed by the regulations. Special members (4) A person appointed under section 40E to assist in the performance of the functions of the Australian Federal Police must, immediately after his or her appointment: (a) enter into an undertaking, in accordance with the form prescribed by the regulations, relating to the performance of his or her duties; and (b) make and subscribe, before the Commissioner or a person authorised by the Commissioner, such oath or affirmation as is prescribed by the regulations. Protective service officers (4A) A person declared to be a protective service officer under section 40EA must, immediately after the declaration: (a) enter into an undertaking, in accordance with the form prescribed by the regulations, relating to the performance of his or her duties; and (b) make and subscribe, before the Commissioner or a person authorised by the Commissioner, such oath or affirmation as is prescribed by the regulations. Special protective service officers (4B) A person appointed under section 40EC to assist in performing the protective service functions of the Australian Federal Police must, immediately after his or her appointment: (a) enter into an undertaking, in accordance with the form prescribed by the regulations, relating to the performance of his or her duties; and (b) make and subscribe, before the Commissioner or a person authorised by the Commissioner, such oath or affirmation as is prescribed by the regulations. Interpretation (5) For the purposes of subsections (1) and (2), appoint does not include re-appoint for a term that begins immediately after the end of the term of the last previous appointment. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 37 General administration and control (1) Subject to this Act, the Commissioner has the general administration of, and the control of the operations of, the Australian Federal Police. Ministerial directions (2) The Minister may, after obtaining and considering the advice of the Commissioner and of the Secretary, give written directions to the Commissioner with respect to the general policy to be pursued in relation to the performance of the functions of the Australian Federal Police. (3) In addition to his or her power to give directions under subsection (2), the Minister may give written directions (either specific or general) to the Commissioner in relation to the use of common services in accordance with an arrangement made under subsection (5). Commissioner must comply with directions (4) The Commissioner must comply with all directions given under this section. Ministerial arrangements (5) The Minister may, after obtaining and considering the advice of the Commissioner and of the Secretary, make an arrangement with the appropriate Minister of a State for the provision or development of common services and for the use of such common services by the Australian Federal Police and the Police Force of the State. Reports (6) The Commissioner must give to the Minister such reports as the Minister requests relating to the administration and the performance of the functions of the Australian Federal Police. Definitions (7) In this section: "common services" includes services consisting of, or provided by means of: (a) computer systems; or (b) forensic science laboratories; or (c) research and planning systems; or (d) training institutions; or (e) anything of a like nature. "Secretary" means the Secretary to the Department. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 38 Commissioner's Orders In the exercise of his or her powers under section 37, the Commissioner may, by writing, issue orders with respect to the general administration of, and the control of the operations of, the Australian Federal Police. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 39 Compliance with Commissioner's Orders An AFP appointee must comply with Commissioner's Orders. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40 Compliance with specific directions, instructions or orders An AFP appointee must not: (a) disobey; or (b) fail to carry out; a lawful direction, instruction or order, whether written or oral, given to him or her by: (c) the Commissioner; or (d) the AFP appointee under whose control, direction or supervision he or she performs his or her duties. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40A Self-incrimination (1) If an AFP appointee is required under section 39 or 40 to give information, answer a question or produce a document, he or she is not excused from giving the information, answering the question or producing the document on the ground that the information, the answer to the question or the production of the document might tend to incriminate him or her or make him or her liable to a penalty. (2) However, any information or answer so given or any document so produced is not admissible in evidence against the AFP appointee in any proceedings. (3) Subsection (2) does not apply to any information or answer so given, or any document so produced, that is relevant to conducting a test under section 40M or 40N (about testing for alcohol or prohibited drugs) Note: Section 40Q deals with the admissibility of such information etc. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40B AFP employees who are members of the Australian Federal Police The Commissioner may, by writing, declare an AFP employee (other than a protective service officer) to be a member of the Australian Federal Police if the Commissioner is satisfied that the employee meets the requirements specified in a determination under section 40C. Note 1: A person who is currently a protective service officer may be declared to be a member if the person ceases to be a protective service officer. Note 2: This section does not prevent a protective service officer from being appointed as a special member. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40C Determination of competency or qualification requirements The Commissioner may, by written determination, specify either or both of the following for the purposes of section 40B: (a) competency requirements; (b) qualification requirements. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40D Commissioned police officers Commission by Governor-General (1) The Governor-General may, by commission, declare a member to be a commissioned police officer. (2) Before the Governor-General makes a declaration under subsection (1), the Minister must have received a recommendation from the Commissioner that the member be declared to be a commissioned police officer. (3) The Commissioner may make such a recommendation only if he or she is satisfied that the member is, in accordance with the regulations, competent and qualified to be a commissioned police officer. Commission by Commissioner or Deputy Commissioner (4) If the Governor-General, in writing, authorises the Commissioner or a Deputy Commissioner to make declarations of the kind mentioned in subsection (1), the Commissioner or Deputy Commissioner may, by commission, declare a member to be a commissioned police officer. (5) The Commissioner or Deputy Commissioner may make a declaration under subsection (4) only if he or she is satisfied that the member is, in accordance with the regulations, competent and qualified to be a commissioned police officer. (6) The giving of an authorisation under subsection (4) does not limit the Governor-General's power under subsection (1). AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40E Special members (1) The Commissioner may, on such terms and conditions as he or she determines in writing, appoint a person as a special member of the Australian Federal Police to assist in the performance of its functions. (2) A person appointed under subsection (1) has, during the continuance of his or her appointment: (a) any powers and duties that are expressly conferred or imposed on special members under a provision of this Act or of any other Act; and (b) such of the powers and duties conferred or imposed on members as are specified in his or her instrument of appointment. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40EA AFP employees who are protective service officers The Commissioner may, by writing, declare an AFP employee (other than a member) to be a protective service officer of the Australian Federal Police if the Commissioner is satisfied that the employee meets the requirements specified in a determination under section 40EB. Note 1: A person who is currently a member may be declared to be a protective service officer if the person ceases to be a member. Note 2: This section does not prevent a member from being appointed as a special protective service officer. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40EB Determination of competency or qualification requirements The Commissioner may, by written determination, specify either or both of the following for the purposes of section 40EA: (a) competency requirements; (b) qualification requirements. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40EC Special protective service officers The Commissioner may, on such terms and conditions as the Commissioner determines in writing, appoint a person as a special protective service officer of the Australian Federal Police to assist in performing the protective service functions of the Australian Federal Police. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40ED Powers and duties of special protective service officers A special protective service officer has: (a) any powers and duties that are expressly conferred or imposed on special protective service officers under a provision of this Act or any other Act; and (b) such of the powers and duties conferred or imposed on protective service officers as are specified in his or her instrument of appointment. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40F Secondment of AFP employees to other police forces etc. (1) The Commissioner may arrange for an AFP employee to be seconded for a specified period to: (a) the Police Force of a State or Territory or of a foreign country; or (b) the Australian Public Service; or (c) any other body or organisation (including an international body or organisation) whether within or outside Australia. Note: Under subsection 27(1), the Commissioner may determine the terms and conditions of employment applying to an AFP employee seconded under this section. Termination of secondment (2) The Commissioner may at any time terminate a secondment under subsection (1) after consultation with the Police Force, the Public Service Commissioner or the body or organisation, as the case may be. Minister may give guidelines for secondments outside Australia (3) The Minister may give the Commissioner written guidelines on the secondment of AFP employees to the Police Force of a foreign country, or to any other body or organisation outside Australia. (4) The Minister must consult the Commissioner about the guidelines before giving them to the Commissioner. (5) If the Minister gives guidelines to the Commissioner, the Commissioner must not arrange for an AFP employee to be seconded to the Police Force of a foreign country, or to any other body or organisation outside Australia, except in accordance with the guidelines. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40G Effect of secondment on status as AFP employee etc. Secondment has no effect on person's status (1) The secondment under section 40F of a person who is an AFP employee does not affect: (a) the person's status as an AFP employee; and (b) if the person is a member--the person's status as a member; and (c) the application of any provision of this Act in relation to the person during the period of the secondment. AFP professional standards obligations etc. continue (2) During a period of secondment of an AFP employee under section 40F, the employee remains subject to the same obligations and liabilities in relation to AFP professional standards as those to which the employee would, but for the secondment, have been subject as such an employee. Rights etc. arising from office or position to which person seconded (3) Nothing in this section affects: (a) any rights, powers or immunities that an AFP employee who is seconded under section 40F has by virtue of holding the office or position to which the employee has been seconded; or (b) the extent to which the employee is subject to obligations or liabilities in relation to discipline by virtue of holding the office or position to which the employee has been seconded. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40H Assignment of duties etc. (1) The Commissioner may from time to time determine in writing the duties of an AFP employee, and the place or places at which the duties are to be performed. Determination of terms and conditions while AFP employee outside Australia (2) The Commissioner may from time to time determine in writing the terms and conditions applying to an AFP employee while the employee is performing duties outside Australia. Duties to meet special operational needs (3) If: (a) the Commissioner makes a determination under subsection (1); and (b) the Commissioner specifies in the determination that the duties concerned are to meet the special operational needs of the Australian Federal Police; the Commissioner may determine in writing the accommodation arrangements that are to apply to the employee, or any allowances the employee is to be paid, while the employee is performing those duties. (4) Without limiting subsection 33(3) of the Acts Interpretation Act 1901, the Commissioner may at any time revoke in writing a determination made under subsection (1). AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40J Suspension from duties etc. (1) The regulations may do any one or more of the following: (a) provide for the suspension from duties of AFP employees, with or without remuneration; (aa) provide that, while suspended from duty, an AFP employee may be required to comply with directions of a kind mentioned in subsection (2); (ab) provide that, while suspended from duty, an AFP employee may take or be on annual leave if: (i) the certified agreement or collective agreement for the time being in force would otherwise deem or require the AFP member to be on annual leave for the period necessary to reduce the balance of annual leave credits to the level specified in the relevant agreement; or (ii) in the case of an AFP employee who is suspended without remuneration--the AFP employee applies to take annual leave that he or she would, if approved, otherwise be able to take; (b) provide that declarations under section 40B (about declaring AFP employees to be members) cease to be in force during a specified period. Note: A declaration under section 40B could also be revoked etc. under subsection 33(3) of the Acts Interpretation Act 1901. (2) The kind of directions that an AFP employee may be required to comply with while suspended from duty are: (a) directions that the AFP employee would be required to comply with if the AFP employee were not suspended from duty; and (b) directions that are given for the purposes of: (i) determining whether the AFP employee or any other AFP employee has committed a criminal offence or failed to maintain AFP professional standards; or (ii) assessing the continuing employment suitability of the AFP employee; or (iii) ensuring continuity, during the period of suspension, in the performance of the AFP employee's duties, being a direction that the employee only is able to comply with. (3) To avoid doubt, an AFP employee who takes annual leave while suspended without remuneration is to be paid as if the employee were taking annual leave while not suspended. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40K Termination of employment for serious misconduct (1) If the Commissioner terminates the employment of an AFP employee under section 28 because the Commissioner believes, on reasonable grounds, that the employee's conduct or behaviour, or any part of it: (a) amounts to serious misconduct by the employee; and (b) is having, or is likely to have, a damaging effect on: (i) the professional self-respect or morale of some or all of the AFP employees; or (ii) the reputation of the Australian Federal Police with the public, or with any section of the public, or with an Australian or overseas government or law enforcement agency; the Commissioner may make a written declaration to that effect. Timing of declaration etc. (2) Any declaration under subsection (1) must be made within 24 hours of the Commissioner's decision to terminate the employment of the AFP employee. The Commissioner must give a copy of the declaration to the AFP employee. Definition (3) In this section: "serious misconduct" means: (a) corruption, a serious abuse of power, or a serious dereliction of duty; or (b) any other seriously reprehensible act or behaviour by an AFP employee, whether or not acting, or purporting to act, in the course of his or her duties as an AFP employee. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40L Financial statements (1) The Commissioner may give a person who is an AFP employee or a special member a written direction requiring the person to give the Commissioner a statement in accordance with subsection (2). Nature etc. of statement (2) The statement must: (a) be made in a form and manner required by the Commissioner; and (b) contain any information required by the Commissioner about the financial affairs of the person during a period, or each period, specified by the Commissioner; and (c) be accompanied by any documents required by the Commissioner. Time limit for giving statement (3) The person must give the statement to the Commissioner within 2 months after the end of the period to which the statement relates. Extension of time (4) The Commissioner may grant an extension of time for giving the statement in special circumstances. Self-incrimination (5) The person is not excused from giving the statement on the ground that the statement might tend to incriminate him or her or make him or her liable to a penalty. (6) However, any statement so given is not admissible in evidence against the person in any proceedings. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40LA Alcohol screening tests (1) An AFP appointee authorised under section 40PA to act as a manager (the authorised manager) may require another AFP appointee (the screening test subject) to undergo an alcohol screening test if: (a) the screening test subject is on duty; and (b) the authorised manager reasonably suspects that the screening test subject is under the influence of alcohol. Compliance with direction (2) The screening test subject must comply with the requirement given to him or her under subsection (1). Test results (3) If the result of the alcohol screening test shows that alcohol is not present in the screening test subject's blood, the screening test subject may return to his or her duties immediately. (4) If: (a) the result of the alcohol screening test shows that alcohol is present in the screening test subject's blood; or (b) the screening test subject refuses to undergo the alcohol screening test; the screening test subject may be given a written direction under section 40M to undergo a breath test if the screening test subject is an AFP employee or a special member. (5) This section does not limit the operation of section 40M. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40M Alcohol breath tests and prohibited drug tests (1) A person authorised to do so under the regulations may give an AFP employee, or a special member, who is on duty a written direction requiring him or her: (a) to undergo a breath test; or (b) to provide a body sample of a kind specified in the direction for a prohibited drug test; in accordance with the regulations. Providing blood sample if breath test indicates the presence of alcohol (2) If: (a) an AFP employee or a special member, in accordance with a direction under subsection (1), undergoes a breath test; and (b) the breath test indicates the presence of alcohol; he or she may provide a sample of his or her blood for the purpose of a blood test, in accordance with the regulations. Compliance with direction (3) An AFP employee or a special member must comply with a direction given to him or her under this section. AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 40N Alcohol breath tests and prohibited drug tests after certain incidents Person killed or seriously injured in an incident involving a motor vehicle or vessel or while in police custody (1) If: (a) a person is killed or seriously injured as a result of an incident involving a motor vehicle or vessel; or (b) an incident occurs in which a person is killed or seriously injured while in police custody; a person authorised to do so in accordance with the regulations may give any AFP employee or special member directly involved in the incident while on duty a written direction requiring him or her: (c) to undergo a breath test; or (d) to provide a body sample of a kind specified in the