Norfolk Island Continued Laws Amendment (Director of Public Prosecutions) Ordinance 2017 [F2017L00986]-Concluded matters [2017] AUSStaCSDLM 382 (18 October 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
Portfolio	Infrastructure and Regional Development
Disallowance	15 sitting days after tabling (tabled Senate 8 August 2017) The time to give a notice of motion to disallow expired on 16 October 2017
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 11 of 2017

Sub-delegation

The committee previously commented as follows:

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 explanatory statement (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 requested the advice of the minister in relation to the above.

Minister's response

The Minister for Local Government and Territories advised:

The purpose of these amendments is to allow the Commonwealth Director of Public Prosecutions (CDPP) to perform certain functions in relation to particular Norfolk Island enactments.
The Department of Infrastructure and Regional Development has principal responsibility for administering Australian territories on behalf of the Commonwealth. The Australian Government has committed to providing to Norfolk Island a level of services comparable to those enjoyed by Australians in other similar-sized communities. The Ordinance contributes to delivering this commitment by allowing prosecutions against particular Norfolk Island laws, and related functions, to be dealt with by the CDPP, consistent with normal prosecution practices on mainland Australia and the other external Territories. The Ordinance complements the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017.
I note the Senate Standing Committee on Regulations and Ordinances' expectations in relation to the power of the CDPP to delegate all or any of his or her functions and powers under the Norfolk Island enactments to a member of the staff of the Office of the CDPP other than the Associate Director.
In response to the matters raised by the Committee, the CDPP has advised through the Department that the approach to delegations in the Ordinance mirrors the approach taken to delegations in the Director of Public Prosecutions Act 1983 (Cth) (the DPP Act). The large number and variety of powers and functions which must be exercised by the CDPP both under the DPP Act and other Commonwealth laws means their delegation to only nominated officers or members of the senior executive service (in accordance with the Committee's expectations) would not be practical from an operational perspective.
These operational considerations include the small population and remote location of Norfolk Island. It is expected that the prosecutorial and related functions of the CDPP with respect to Norfolk Island will not ordinarily be undertaken by senior executive staff and/or holders of nominated offices, but by appropriately qualified officers within the Office of the CDPP. This practical constraint on the operational environment requires a power of sub­delegation to a broad category of officers within the Office of the CDPP.

Committee's response

The committee thanks the minister for her response and notes the minister's advice that the number and variety of powers and functions which must be exercised by the CDPP means their delegation to only nominated officers or members of the senior executive service would not be practical from an operational perspective. The committee further notes the minister's advice that it is expected that the prosecutorial and related functions of the CDPP with respect to Norfolk Island will ordinarily be undertaken by appropriately qualified officers within the Office of the CDPP.

The committee nevertheless reiterates its concerns regarding the delegation in this instrument to a large class of persons, with no legislative restriction as to their qualifications or attributes. As the committee previously stated, it is not its expectation that details of the qualifications and attributes for delegates—or identification of specific delegates—be set out in the ordinance. Rather, the committee's strong preference is that sub-delegation provisions in delegated legislation include a requirement that the holder of the powers be satisfied that the delegate has the relevant qualifications and attributes to properly exercise the powers delegated.

The committee has concluded its examination of the instrument. However, noting the concerns raised above with respect to broad sub-delegation of powers, the committee draws this matter to the attention of the Senate.

Senator John Williams (Chair)