Bills Digest no. 75, 2017–18
PDF version [238KB]
Jonathan Mills
Law and Bills Digest Section
7 February 2018
Contents
Purpose of the Bill
Structure of the Bill
Background
The Independent Commission Against
Corruption Amendment Act 2016 (NSW)
The Telecommunications (Interception
and Access) Act 1979 and the Surveillance Devices Act 2004
The Commonwealth Director of Public
Prosecutions
Norfolk Island
Committee consideration
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Changes related to NSW ICAC
TIA Act
SD Act
General Transition provisions
Norfolk Island
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]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[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.
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