directed interview - Australian Federal Police Association

Professional Standards Investigation
and ‘directed interview’
As the AFP moves into a new phase
of recruitment it is timely for the
AFPA to provide members and
potential members with some
background and context surrounding
the Professional Standards (PRS)
process and interviews.
As we know, all AFP appointees are required
to maintain the highest levels of professional
standards in both their professional and their private
lives. AFP PRS is tasked with responsibility for the
oversight and investigation of complaints about the
conduct issues of AFP appointees.
The Australian Federal Police Act 1979 (‘The
Act’) relevantly defines “an AFP conduct issue” in
section 40RH of the Act as ‘an issue of whether
an AFP appointee has engaged in conduct that
contravenes the AFP professional standards’.
There are 4 categories of AFP conduct issues as
set out in section 40RK of the Act in ascending
order of seriousness. They are category 1, category
2, category 3, and the most serious, conduct giving
rise to a corruption issue.
A PRS investigation is usually commenced by the
PRS Investigation Unit, which is constituted under
section 40RD of the Act to undertake investigations
of inter-alia “category 3 conduct issues” made by
a complainant.
Given the seriousness of the nature of the issue(s),
the investigation may lead to disciplinary actions
and possibly even to a termination of employment
of an AFP appointee involved. This is where the
AFPA provides members with assistance, in helping
guide members through the investigation process
ensuring that all procedural fairness obligations are
afforded to our members during that process.
The following includes some frequently asked
questions and answers to assist AFPA members in
better understanding the process.
1. Do I have to attend a ‘directed
interview’ and answer all the questions
from the investigator?
Yes, provided you are advised of the allegations
made against you.
An investigator has very broad investigative
powers under Division 5 of the Act. These powers
can be summarized as: a) an investigation is to
be conducted, subject to the rest of Division 5,
in such manner as the investigator thinks fit; b)
an investigator may obtain information from such
persons, and make such enquiries, as he or she
thinks fit under section 40 VC of the Act; and c) an
investigator is empowered by section 40VE of the
Act to give directions to an AFP appointee to give
the investigator information or do anything else
that is reasonably necessary for the purpose of
obtaining evidence in relation to the investigation
or inquiry.
Therefore, an appointee of the AFP is obliged to
attend a directed interview and honestly answer
all the questions imposed by the investigator to
your best knowledge of the subject matter under
the law. The significance of the interview, which is
conducted under compulsion of statute, manifests
in that failing to comply with the directions is an
offence under section 40VH (1) of the Act.
In addition, given the high standards of honesty
and integrity required of those employed by the
AFP, it is of utmost important that members conduct
themselves in a way that demonstrates a complete
honesty during the investigation and interview.
Otherwise, a proven dishonesty is a valid reason
for the termination of one’s AFP employment1.
Furthermore, the requirement for honesty and
integrity of AFP appointees far outweighs any
concerns about the impact upon one’s personal or
professional life. This has been the case in a recent
decision of Fair Work Commission in relation to
an unfair dismissal application filed by a former
AFP appointee.
2. What should I do if PRS approach me
for an “informal chat”?
You are under no obligation to attend an “informal
chat”.
Please be aware that if you decided to attend the
“informal chat”, the content of the conversation
is not protected as it would be if you were under
a direction. The information obtained during any
“informal chat” can be used as evidence against
you in a legal proceeding.
It is advisable you clarify the intention of the
“informal chat” with the officer who contacts you
and whether the ‘“informal chat” is related to a PRS
investigation; that is, whether the PRS investigation
has commenced. If the answer is positive, then it
is highly likely you may be facing a written direction
when you turn up for the “informal chat”. In that
circumstance, you are entitled to, and should
request the now interview be postponed so you can
arrange advice and support from the AFPA.
3. What is the nature of the PRS
investigation?
The PRS investigation is an internal administrative
decision making process which may result in
a negative impact on an appointee’s interests.
Thus, the rules of procedural fairness need to be
followed in the decision making process. However,
the possible sanctions imposed as a result of the
investigation per se are remedial and not criminal,
nor civil.
In addition, an AFP appointee is protected under
section 40 VE (4) of the Act that any information
obtained during the investigation process cannot be
used as evidence in any civil or criminal proceeding
against the person subject to the investigation. In
that regard, the AFP appointee is in a much better
position compared to their State counterparties, as
other Australian jurisdictions may not provide the
1
same protection to police officers as the federal
jurisdiction. That is, information provided under
direction in other jurisdictions subject to a PRS
investigation may be used in a civil or criminal
proceeding against the officer concerned.
4. What does procedural fairness/natural
justice mean in the context of a PRS
investigation?
The notion ‘procedural fairness’ has developed
primarily through common law2 and is deeply rooted
in Australian Law. It lies at the heart of the judicial
function and condition for the exercise of a large
array of administrative powers affecting the rights,
duties, privileges and immunities of individuals and
organisations. Procedural fairness is concerned
with the procedures used by a decision-maker,
rather than the actual outcome reached. It requires
a fair and proper procedure be used when making
a decision.
The rules of procedural fairness requires that a
hearing relates appropriately to the circumstances;
that decision making lacks bias; that a decision is
supported by all relevant evidence; and that inquiry
will be made into matters in dispute.
In line with procedural fairness, a PRS investigator
should provide the appointee concerned with
adequate time for the appointee to prepare
for interview;3 details of any credible, relevant
and significant adverse information which the
investigator has and which may affect the decision
to be made and be given an opportunity to respond;
and notice of a proposed decision that may
adversely affect them.
5. Does it breach procedural fairness
if documents provided are not full and
complete?
No, unless the missing information has a negative
impact on your matter and you have been deprived
of an opportunity to reply.
An appointee of the AFP involved with PRS
investigations previously would have noticed that
a PRS investigation report is usually redacted to
some degree. In addition, some annexures of an
investigation report may not be attached to the
report. It is arguable that this practice infringes the
rules of procedural fairness, for one cannot provide
a proper response if one is not provided with a full
version of the events.
However, the court and tribunal takes the approach
that there will be no unfairness caused due to
particular redactions or to the withholding of any
documents4. This is as long as the withholding does
not affect the possibility of a successful outcome
adversely and is based on the ground of good/
substantial reasons for preserving confidentiality
and for matters unconnected with the central
allegation against you.
It is also settled at law that there is no obligation
to disclose the decision-maker’s deliberative
processes or proposed conclusions.6 Procedural
fairness ordinarily requires the party affected to be
given the opportunity of ascertaining the relevant
issues and to be informed of the nature and content
of adverse material. As High Court said:
Fairness is not an abstract concept. It is
essentially practical. Whether one talks in terms
of procedural fairness or natural justice, the
concern of the law is to avoid practical injustice7.
Therefore, a member might not be able to obtain
a full un-redacted investigation report and certain
internal reports that the investigator produced
for internal deliberation purposes. However, the
member is entitled to be provided any information
or material which adversely5 impacts on the
outcome of their matter. Be mindful, the internal
correspondences relating to your matter are
certainly able to be accessed under Freedom
Information legislation.
6. Can decisions/findings of PRS
investigations be reviewed or appealed?
If PRS has downgraded your matter to category 2
after initial investigation, the decisions for Category
2 conduct can be reviewed by the Manager of PRS.
However, if it is a category 3 matter, then there
is no review mechanism to re-examine the merit
or procedure of the decision making processes.
However, the decision can be reviewed externally
by the Commonwealth Ombudsman or the Federal
Court if you believe the decision making process
lacked natural justice or the decision is made
ultra-vires/ beyond the power.
Be aware, there is a strict timeline for a judicial
review in the Federal Court, you have to make your
application to the Federal Court within 21 days
after the administrative decision is made. Also, that
judicial review in the Federal Court only pertains to
the lawfulness of the decision making. Therefore
it is not a ‘merits’ review, that is, a judicial review
will not re-examine the facts in issues relating to
the substance of the investigation process. Section
70 of the AFP Act requires there to be an internal
merits review mechanism and Regulation 24 of the
AFP Regulations 1979 goes further to describe a
minimum requirement for such an internal review
mechanism. The disputes procedures set out in
the AFP Enterprise Agreement (EA) are of limited
or no help in relation to a PRS investigation as that
disputes procedure only relates to decisions made
within the jurisdiction of the EA.
It must also be noted that the Administration
Appeal Tribunal (‘AAT’) has no jurisdiction to review
decisions made under the Act.
Conclusion
In conclusion, we trust this provides members
with some useful context associated with the PRS
process and member obligations and rights. Expert
legal and industrial advice and assistance is only
available to AFPA members who are members at
the time the incident under investigation occurs.
Such advice and assistance is provided as part of
your membership. Non-members may not receive
advice or assistance from the AFPA if they join
the AFPA after an incident that results in PRS
investigation occurs.
The AFPA have also created a quick reference
guide to aid AFPA members through the AFP’s
PRS, Critical Incidents, Bullying and Harassment
and Performance Development processes.
To obtain your quick reference guide or request
the AFPA’s assistance please lodge a request for
assistance by clicking HERE.
Sandra Johnston v Australian Federal Police [2014] FWC 4201 at 55
R v University of Cambridge (1723) 1 Strange 557; 98 ER 698 per
Fortescue J, cited in Forbes ‘Justice in Tribunals’
3
Kioa v West (1985) 159 CLR 550
4
ibid
5
Coutts v Close [2014] FCA 19 at 124
6
Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206
CLR 57 at 69 per Gleeson CJ and Hayne J
7
(2003) 214 CLR 1 at 14 as per Gleeson CJ
1
2
Disclaimer: the purpose of this article is for education only, it is not intended to be provided as legal advice. Members of the AFPA should contact the AFPA
legal team for particular advice for your individual PRS matter.