BILLS DIGEST NO. 75, 2017–18              7 February 2018

Investigation and Prosecution Measures Bill 2017

Jonathan Mills
Law and Bills Digest Section 

Date introduced: 13 September 2017

House:  House of Representatives

Portfolio: Attorney-General

Commencement: Schedule 1 commences on Royal Assent. Schedule 2 commences the day after Royal Assent. The remaining sections of the Act commence on Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at February 2018.

Purpose of the Bill

The purpose of the Investigation and Prosecution Measures Bill 2017 (the Bill) is to amend the Telecommunications (Interception and Access) Act 1979 (the TIA Act) and the Surveillance Devices Act 2004 (the SD Act) to make amendments consequential on the restructuring of the Independent Commission Against Corruption of New South Wales (NSW ICAC) by the Independent Commission Against Corruption Amendment Act 2016 (NSW).

The Bill also amends the Director of Public Prosecutions Act 1983 (the DPP Act) to ensure that the general functions, powers and duties of the Commonwealth Director of Public Prosecutions (CDPP) include prosecution of offences under the laws of Norfolk Island.

Structure of the Bill

This Bill is divided into two Schedules:

•       Schedule 1 introduces amendments into the TIA Act and the SD Act to properly account for the recent restructure of the NSW ICAC in Commonwealth legislation. This Schedule includes amendments consequential on changes to the structure and position names of the NSW ICAC, as well as inserting transitional provisions to ensure that things done in relation to or by an officer of the NSW ICAC prior to the restructure will continue to be treated as if they were done in relation to or by the restructured NSW ICAC.[1]

•       Schedule 2 introduces amendments into the DPP Act to provide that the general functions, powers and duties of the CDPP include prosecution functions for Norfolk Island laws.

Background

Independent Commission Against Corruption Amendment Act 2016 (NSW)

The NSW ICAC was established in 1988 to investigate and expose corrupt conduct in public administration in NSW.[2]

In 2016 the NSW Parliament passed the Independent Commission Against Corruption Amendment Act 2016 (NSW) to restructure the NSW ICAC, including by introducing a new structure comprising a Chief Commissioner and two part-time Commissioners, along with additional Assistant Commissioners if required. This structure is in place of the earlier arrangement comprising a Commissioner, with additional Assistant Commissioners if required.[3]

The Independent Commission Against Corruption Amendment Act commenced in August 2017 and has since been automatically repealed, with all amendments to the Independent Commission Against Corruption Act 1988[4] having been made.[5]

Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act 2004

These Commonwealth Acts contain provisions dealing with cooperation between jurisdictions, and so include specific references to officers of various non-Commonwealth bodies, including the NSW ICAC. It is therefore necessary for the Commonwealth Acts to be amended in order to maintain the correct references to officers of the NSW ICAC.

The TIA Act is the Commonwealth legislation that allows specified law enforcement and intelligence agencies to access communications and data for investigative purposes. Positions within each agency are specified in the Act as being able to perform certain functions, such as revoking warrants.

The SD Act governs how certain law enforcement agencies may use surveillance devices in the investigation of Commonwealth offences or state offences with a Commonwealth aspect. Similarly to the TIA Act, the SD Act grants certain authorities to specific positions within the agencies.

Commonwealth Director of Public Prosecutions

The CDPP is an independent prosecution service established under the DPP Act in 1984 to prosecute alleged offences against Commonwealth law.[6]

The CDPP is within the Commonwealth Attorney-General’s portfolio, but operates independently of the Attorney-General and the political process. The Commonwealth Attorney-General has power under section 8 of the DPP Act to issue directions or guidelines to the Director.[7]

Norfolk Island

Between 2015 and 2016, the Commonwealth enacted legislation that enabled it to take over the administration of Norfolk Island including taking responsibility for all levels of government services.[8]

In August 2017 the CDPP assumed responsibility for prosecuting offences against Norfolk Island laws, in place of the Norfolk Island Regional Council. Amendments made by the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017[9] to the Director of Public Prosecutions Regulations 1984,[10] provided the CDPP with power to conduct prosecutions under Norfolk Island laws.[11]

The Government now seeks to amend the DPP Act to provide that the general functions, powers and duties of the CDPP include prosecution of offences under the laws of the island and to validate things done under the Director of Public Prosecutions Regulations 1984 as amended by the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017.

Committee consideration

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills reported on the Bill in its Scrutiny Digest 12 of 2017. The Committee raised concerns about the retrospective effect of the potential validation, by item 4 of Schedule 2, of certain actions already undertaken by the CDPP:

If the DPP Regulations, as amended in August 2017, are invalid, any action taken by the Director of Public Prosecutions in relation to Norfolk Island is likely to have not been lawfully authorised. As such, validating any action taken by the Director of Prosecutions between August 2017 and when this bill may pass would have a retrospective effect.[12]

The Committee requested further information from the Attorney-General.

The Attorney-General’s response was detailed in the Scrutiny Digest 13 of 2017, in which he stated:

Part 3 of Schedule 2 of the Bill applies only if the amending Regulations were to be challenged and found to be invalid. Therefore, the retrospective application of that Part would only operate to validate anything done under the amending Regulations… It is important to note that the retrospective application of Part 3 of Schedule 2 of the Bill would not have any detrimental effect on an individual, or change the rights or liabilities of any person subject to prosecution during the period in which the amending Regulations were purportedly in force. The Bill does not in any way change the circumstances under which a person may be found to have committed a criminal act. The provision merely ensures the availability of an effective mechanism for prosecuting such acts.[13]

The Committee noted ‘the difficulty in reconciling the Attorney-General's advice that it is necessary to ensure the validity of the amending regulations because the consequence of invalidity would be “significant for all concerned”, with the advice that the validation would not have any detrimental effect on an individual, or change the rights or liabilities of any person subject to prosecution.’[14] However, the Committee concluded that in light of the information and assurances provided it would make no further comment.[15]

Policy position of non-government parties/independents

At the time of writing no non-government parties or independents had expressed a position on the Bill.

Position of major interest groups

At the time of writing no major interest groups had expressed a position on the Bill.

Financial implications

According to the Explanatory Memorandum to the Bill, the Bill will have no financial impact.[16] It is not clear how this assessment was arrived at given the increase in responsibilities for the CDPP in relation to Norfolk Island.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[17]

Parliamentary Joint Committee on Human Rights

The PJCHR reported on the Bill in its Report 12 of 2017, commenting that, consistent with the human rights concerns related to the right to privacy that the Committee had identified in its earlier reports in relation to the powers granted under the TIA Act, the Committee could not conclude that the Bill justifiably limits the right to privacy.[18] The Committee also stated that the SD Act and the TIA Act should be reviewed to assess their compatibility with the right to privacy, and drew the earlier identified right to privacy implications of these Acts to the attention of Parliament.

Key issues and provisions

Changes related to NSW ICAC

Part 1 of Schedule 1 introduces definitions of new Commission and old Commission, to refer, respectively, to the NSW ICAC as it was before and after the commencement of the Independent Commission Against Corruption Amendment Act 2016 (NSW).

TIA Act

Part 2 of Schedule 1 introduces amendments to the TIA Act as well as providing transitional provisions to ensure that things done under the Act prior to the NSW law change may continue under the new Commission.

Items 1 to 5 amend the TIA Act to reflect the new structure of the NSW ICAC. In particular, references in the Act to ‘the Commissioner’ are replaced with ‘the Chief Commissioner’, while a reference to ‘the Commissioner, or an Assistant Commissioner’ is replaced with ‘the Chief Commissioner, a Commissioner or an Assistant Commissioner’.

Items 6 to 10 introduce transitional provisions that ensure that things done under the TIA Act prior to the NSW law change may continue under the new Commission, specifically:

•       warrants issued to the old Commission

•       authorisations made by an officer of the old Commission

•       preservation notices given by the old Commission

•       evidentiary certificates issued by an officer of the old Commission and

•       information or documents acquired by the old Commission.

SD Act

Part 3 of Schedule 1 introduces amendments to the SD Act as well as providing transitional provisions to ensure that things done under the Act prior to the NSW law change may continue under the new Commission.

Item 11 amends subsection 6A(7), table item 10, to reflect the new structure of the NSW ICAC. The table at subsection 6A(7) sets out the appropriate officers of each state and territory law enforcement agency for each of the categories of Chief officer, Law enforcement officer and Appropriate authorising officer. These positions have different powers and duties under the Act.

Table item 10 of subsection 6A(7) currently refers to the Commissioner and an Assistant Commissioner for the NSW ICAC, item 11 would replace this with references to the Chief Commissioner, a Commissioner and an Assistant Commissioner where appropriate.

Items 12 to 15 introduce transitional provisions that ensure that things done under the SD Act prior to the NSW law change may continue under the new Commission, specifically:

•       warrants issued to an officer of the old Commission

•       authorisations given by an appropriate officer of the old Commission

•       evidentiary certificates issued by an appropriate officer of the old Commission and

•       information or documents acquired by the old Commission.

General transition provisions

Part 4 of Schedule 1 provides general transition provisions to ensure that anything relevant to a Commonwealth law in relation to the old Commission will continue to be valid.

Item 16 provides that things done by or in relation to the old Commission for the purposes of a Commonwealth law will continue as if done by the new Commission.

Item 17 provides that no Commonwealth law prevents the Commissioner of the old Commission from providing information or documents acquired by the old Commission to the new Commission.

Item 18 provides that the Minister may make rules dealing with other transitional issues if necessary.

Norfolk Island

Schedule 2 contains provisions to amend the DPP Act to extend the functions and powers of the CDPP to the laws of Norfolk Island in primary legislation.

The Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017 had the effect of adding prosecution of, and recovery of pecuniary penalties under, continued Norfolk Island law to the functions of the CDPP under subsection 6(2) of the DPP Act.[19] Those regulations also tasked the CDPP with additional functions, including providing legal advice to Norfolk Island authorities on law enforcement, investigation and prosecution matters.

Rather than making specific reference to Norfolk Island laws, the Bill will ensure that the prosecution of offences under such laws is covered by the CDPP’s general function to prosecute indictable and summary offences, pursue civil remedies and recover pecuniary penalties under Commonwealth laws.[20] It does this by amending the definition of law of the Commonwealth in subsection 3(1) of the DPP Act. That definition currently provides that a ‘law of the Commonwealth’ includes a law of a Territory, but specifically excludes the Norfolk Island Act 1979 and any law made under, or continued in force by it, from the definition. Item 1 of Schedule 2 to the Bill will remove this exclusion. As Norfolk Island is a Territory,[21] its laws will then come within the definition of law of the Commonwealth and the CDPP’s general functions in relation to such laws, set out at subsection 6(1) of the DPP Act, will apply.

Item 3 states that, to avoid doubt, any reference to a law of a territory in the DPP Act or its instruments includes a reference to a law in force in Norfolk Island.

Item 4 provides that things done under the Director of Public Prosecutions Regulations 1984,[22] as amended by the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017,[23] are valid even if an amendment made by the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017 is found to be invalid.

As noted above, the Senate Standing Committee for the Scrutiny of Bills raised concerns over the possible retrospective effect of this item but elected to make no further comment following the response from the Attorney-General.[24]

In response to the Committee, the Attorney-General stated that Item 4 would apply ‘only if the amending Regulations were to be challenged and found to be invalid’[25] and that the provision was included ‘as a precaution to avoid any detrimental impact should the amending Regulations be found to be invalid. It is important to ensure the validity of any prosecutions conducted on Norfolk Island in reliance on the amending Regulations.’[26]

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[1].              Schedule 1 of the Bill is drafted to commence on the later of the day of Royal Assent or the day the Independent Commission Against Corruption Amendment Act 2016 (NSW) commences. As this NSW Act commenced in August of 2017 and has since been automatically repealed, with all amendments to the Independent Commission Against Corruption Act 1988 (NSW) having been made, Schedule 1 of the Bill will commence on Royal Assent. See the NSW Government Legislation webpage for the Independent Commission Against Corruption Amendment Act 2016, ‘Historical notes’.

[2].              Independent Commission Against Corruption, ‘Overview’, ICAC NSW website.

[3].              The restructure was controversial, with the then Commissioner of the NSW ICAC , Megan Latham, stating that the restructure was ‘an unprecedented attack on the independence and effectiveness of the Commission as a leading anti-corruption agency’; M Latham, Statement regarding the Independent Commission Against Corruption Amendment Bill 2016, media release, NSW ICAC website, 15 November 2016.

[4].              Independent Commission Against Corruption Act 1988 (NSW).

[5].              Independent Commission Against Corruption Amendment Act 2016, ‘Historical notes’, NSW Government Legislation webpage.

[6].              The Director of Public Prosecutions Act 1983, commenced in 1984.

[7].              Commonwealth Director of Public Prosecutions (CDPP), ‘About Us’, CDPP website.

[8].              Department of Infrastructure and Regional Development, ‘Norfolk Island reform’, DIRD website, last updated 31 January 2018. For further information see: C Madden, Norfolk Island Legislation Amendment Bill 2015, Bills digest, 102, 2014–15, Parliamentary Library, Canberra, 2015; C Madden and M A Neilsen, Passenger Movement Charge Amendment (Norfolk Island) Bill 2016 [and] Territories Legislation Amendment Bill 2016, Bills digest, 101, 2015–16, Parliamentary Library, Canberra, 2016.

[9].              Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017.

[10].              Director of Public Prosecutions Regulations 1984.

[11].              CDPP, Norfolk Island prosecutions, media statement, 9 August 2017.

[12].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest 12, 2017, The Senate, 18 October 2017, pp. 30–1.

[13].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 13, 2017, The Senate, 15 November 2017, p. 108.

[14].              Ibid., pp. 108–9.

[15].              Ibid., p. 109.

[16].              Explanatory Memorandum, Investigations and Prosecution Measures Bill 2017, p. 4.

[17].              The Statement of Compatibility with Human Rights can be found at page 6 of the Explanatory Memorandum to the Bill.

[18].              Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 28 November 2017, pp. 84–8.

[19].              Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017, regulations 2 and 6. Item 2 of Schedule 1 to those amendments defined continued Norfolk Island law as a law that was continued in force by section 16 of the Norfolk Island Act 1979 or made by the Legislative Assembly of Norfolk Island (before its dissolution) and continued in force by section 16A of the Norfolk Island Act.

[20].              The CDPP also has additional functions under section 6 of the DPP Act, including assisting with coronial inquests conducted under laws of the Commonwealth.

[21].              See section 2B of the Acts Interpretation Act 1901 and section 122 of the Constitution. See also Department of Infrastructure, Regional Development and Cities (DIRDC), ‘Territories of Australia’, DIRDC website.

[22].              Director of Public Prosecutions Regulations 1984.

[23].              Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017.

[24].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 13, 2017, op. cit., p. 109.

[25].              Ibid., p. 108.

[26].              Ibid., p. 108.