Commonwealth Numbered Regulations - Explanatory Statements

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DIRECTOR OF PUBLIC PROSECUTIONS AMENDMENT (REPEAL OF NORFOLK ISLAND PROVISIONS) REGULATIONS 2018 (F2018L00478)

EXPLANATORY STATEMENT

Issued by the authority of the Attorney-General

Director of Public Prosecutions Act 1983

Director of Public Prosecutions Amendment (Repeal of Norfolk Island Provisions) Regulations 2018

Authority

The Director of Public Prosecutions Act 1983 (the Act) establishes the Office of the Commonwealth Director of Public Prosecutions and confers certain powers, functions and duties on the Commonwealth Director of Public Prosecutions (CDPP).

Section 34 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 6(2)(b) of the Act provides that the functions of the Director include such other functions as are prescribed.

The purpose of the Director of Public Prosecutions Amendment (Repeal of Norfolk Island Provisions) Regulations 2018 (the repeal Regulations) is to repeal the amendments made last year by the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017 (the 2017 Regulations). These commenced on 5 August 2017 and extended the CDPP's responsibility for prosecutions to certain laws applicable on Norfolk Island.

When the Investigation and Prosecution Measures Bill 2017 passes Parliament and its provisions commence, they would supersede the amendments made by the 2017 Regulations by extending the CDPP's responsibility for prosecutions under criminal laws applicable to Norfolk Island in primary legislation. The effect of the repeal Regulations would be to return the Director of Public Prosecution Regulations 1984 to the position they were in prior to the commencement of the 2017 Regulations.

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. Prosecutions against Norfolk Island laws would continue to be dealt with by a professional and independent prosecution service with significant technical expertise, akin to prosecution practices on mainland Australia and the other external territories.

The Attorney-General's Department (AGD) consulted with the CDPP, the Department of Infrastructure, Regional Development and Cities and the Department of the Prime Minister and Cabinet, who support the repeal Regulations.

Details of the Regulations are set out at Attachment A.

The Office Best Practice Regulation was consulted by AGD in the preparation of the Regulations and advised that a Regulatory Impact Statement was not required.

The Statement of Compatibility with Human Rights set out at Attachment B is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

The Regulations would be a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations would commence on the day after it is registered on the Federal Register of Legislative Instruments.

Attachment A

Details of the Director of Public Prosecutions Amendment (Repeal of Norfolk Island Provisions) Regulations 2018

Section 1 - Name

This section provides that the title of the Regulation is the Director of Public Prosecutions Amendment (Repeal of Norfolk Island Provisions) Regulations 2018.

Section 2 - Commencement

This section provides that each provision of the Regulation specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table, with the effect that the substantive amendment to the Director of Public Prosecutions Regulations 1984 (DPP Regulations) with respect to Norfolk Island commences the day after prosecutorial functions are legislatively conferred by the Parliament or the day after the instrument is registered.

Section 3 - Authority

This section provides that the Regulation is made under the Director of Public Prosecutions Act 1983.

Section 4 - Schedules

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 - Amendments

Item 1 repeals the heading of Part 1 of the DPP Regulations, currently titled 'Preliminary'.

Item 2 repeals the definitions of 'continued Norfolk Island Law' and 'Norfolk Island authority' in regulation 2.

Item 3 repeals the heading of Part 2, currently titled 'General Provisions'.

Item 4 omits 'other functions of the Director are' in subregulation 3(1), and substitutes 'the other functions of the Director are'. This clarifies that subregulation 3(1) of the DPP Regulations contains an exhaustive list of the other functions of the Commonwealth Director of Public Prosecutions.

Item 5 repeals Parts 3 and 4. Parts 3 and 4 were inserted by the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017. Following commencement of the Investigation and Prosecution Measures Act 2018, the functions and powers given to the CDPP under existing Part 3 of the Regulations are given to the CDPP by the Act, and so regulations are no longer necessary to confer the functions. Part 4 deals with application and transitional matters relating to the commencement of the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017, and is likewise no longer necessary.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Director of Public Prosecutions Amendment (Repeal of Norfolk Island Provisions) Regulations 2018

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

The Director of Public Prosecutions Amendment (Repeal of Norfolk Island Provisions) Regulations 2018 repeals the amendments made by the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017 (the 2017 amending Regulations). The 2017 amending Regulations commenced on 5 August 2017, extending the CDPP's prosecutorial functions to certain laws applicable on Norfolk Island. The Investigation and Prosecution Measures Act 2018 amended the Director of Public Prosecutions Act 1983 to extend the CDPP's prosecutorial functions to Norfolk Island, and so the amendments made by the 2017 amending Regulations are no longer necessary.

Human rights implications

The Regulations ensure existing Commonwealth prosecutorial arrangements applicable on mainland Australia continue to apply to Norfolk Island, such that the CDPP may institute, carry on or take over proceedings under laws applicable on Norfolk Island if he or she so wishes. When read in conjunction with the Investigation and Prosecution Measures Act 2018, the Regulations do not materially change any of the functions, powers or duties of the CDPP. As such, the Regulations do not engage any of the applicable rights or freedoms.

Conclusion

This legislative instrument is compatible with human rights.