Norfolk Island Continued Laws Amendment (Director of Public Prosecutions) Ordinance 2017 [F2017L00986]-Response required [2017] AUSStaCSDLM 305 (16 August 2017)

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Instrument	Norfolk Island Continued Laws Amendment (Director of Public Prosecutions) Ordinance 2017 [F2017L00986]
Purpose	Amends the Norfolk Island Continued Laws Ordinance 2015 to allow the Commonwealth Director of Public Prosecutions to perform certain functions in relation to particular Norfolk Island laws
Authorising legislation	Norfolk Island Act 1979
Department	Infrastructure and Regional Development
Disallowance	15 sitting days after tabling (tabled Senate 8 August 2017) Notice of motion to disallow currently must be given by 16 October 2017
Scrutiny principle	Standing Order 23(3)(a)

Sub-delegation

The committee's expectations in relation to sub-delegation accord with the approach of the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills committee), which has consistently drawn attention to legislation that allows delegations to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, a limit should be set in legislation on either the sorts of powers that might be delegated or on the categories of people to whom powers might be delegated; and delegates should be confined to the holders of nominated offices or to members of the senior executive service.

With reference to the above, the committee notes that item 12 of Schedule 1 to the ordinance inserts item 12E into the Norfolk Island Continued Laws Ordinance 2015, and thereby amends the Interpretation Act 1979 (Norfolk Island) to allow the Commonwealth Director of Public Prosecutions (CDPP) to delegate all or any of his or her functions or powers under an enactment to a member of staff of the Office of the CDPP other than the Associate Director. The ES to the ordinance states:

The delegation power is necessary as it will often not be practicable for the Director to personally discharge functions under Norfolk Island laws. The provision will allow the Director to delegate functions under Norfolk Island continued laws consistently with how functions conferred on the Director under Commonwealth laws may be delegated.

However, the committee notes that neither the ordinance nor the ES provides information about whether a delegate who exercises the powers of the CDPP is required to be at a certain level in the Australian Public Service, such as a member of the senior executive service.

In addition, the committee is concerned that the delegation provision contains no requirement that a member of staff to whom functions or powers under a Norfolk Island enactment are delegated is appropriately trained or qualified to ensure the proper exercise of the powers. The committee's expectation is not that details of the qualifications and attributes for delegates be specified in the ordinance; rather, that the provision include a requirement that the CDPP be satisfied that the delegate has the relevant qualifications and attributes to properly exercise the powers delegated.

The committee requests the advice of the minister in relation to the above.