Explanatory Memorandum
(Circulated by authority of the Minister for Justice, the Honourable Brendan O'Connor MP)Schedule 3 - Director of Public Prosecutions Act 1983
The Director of Public Prosecutions Act 1983 (the DPP Act) establishes the Office of the Commonwealth Director of Public Prosecutions (CDPP), and provides for the functions and powers of the head of the CDPP, the Director.
The amendments ensure that the Director can delegate functions and powers to facilitate, among other things, joint trial arrangements with the CDPP's State and Territory counterparts. The amendments also provide for immunity from civil proceedings for persons carrying out functions and powers under the Act.
Items 1 and 2: subsection 31(1) - delegation by Director
Section 6 of the DPP Act sets out the functions of the Director, and section 9 provides for the powers of the Director.
Subsection 31(1) of the DPP Act provides for the Director to delegate all or any of his or her powers under the Act to a member of the staff of the Office, other than the Associate Director. The exception to this is that the Director cannot delegate his or her powers under subsections 6(2D), 9(2) and 9(6D), which include instituting a prosecution on indictment where a person has not been examined or committed for trial, signing an indictment and giving an undertaking to a person that the person will not be prosecuted. The power to delegate under subsection 31(1) is non-delegable.
It is unclear on the face of the legislation whether the delegation power in subsection 31(1) extends to functions as well as powers. As currently drafted, the provision only refers to the delegation of 'powers', but in setting out the exceptions, refers a 'function' (subsection 6(2D)). This would suggest that the underlying intention was to provide that the Director could delegate both functions and powers.
Items 1 and 2 amend subsection 31(1) to put beyond doubt that the Director can delegate any or all of his or her functions and powers under the Act.
The amendments do not change the position that the functions and powers under subsections 6(2D), 9(2) and 9(6D), and the power to delegate under subsection 31(1), cannot be delegated.
Item 3: new subsection 31AA
The DPP Act sets out staffing arrangements for the CDPP. Section 29 of the DPP Act provides for the secondment of staff to the CDPP. Secondees include persons whose services are made available to the Director as part of an arrangement made under section 30 of the DPP Act (paragraph 29(b)). Section 30 provides for the Attorney-General and the Minister of the Crown of a State to make administrative arrangements for the secondment of State officers.
Section 31(1) of the DPP Act provides for the delegation of certain powers to a member of the staff of the Office. Subparagraph 3(4)(c) of the DPP Act provides that a member of the staff of the Office includes a person seconded under section 29. That is, a State officer seconded under a section 30 arrangement is considered a member of the staff of the Office for the purposes of the DPP Act.
Section 31(1), as amended by items 1 and 2 of Schedule 3, will allow the Director to delegate functions to State officers on a secondment arrangement.
The High Court case of O'Donoghue v Ireland (2008) 82 ALJR 680 suggests that the DPP Act could provide for the delegation of powers to a State or Territory official under Commonwealth legislation alone. However, O'Donoghue indicates that the delegation of functions (which may impose a duty) may be invalid where there is no arrangement (whether administrative or legislative) with the State to accept that duty. The distinction is that powers are not required to be exercised, whereas functions/duties may be required to be performed.
Item 3 inserts a new subsection 31(1AA) which provides that if a function is delegated by the Director under subsection 31(1) to a person referred to in paragraph 29(b), the person need not accept the function delegated. This is intended to establish that any function delegated under section 31(1) is to be exercised voluntarily, and therefore the conferral is not invalid within the reasoning of O'Donoghue .
Item 4: new subsection 31(1B)
The CDPP and its State and Territory counterparts have established arrangements for the conduct of joint trials. A joint trial is where a defendant has been indicted, or charged, with Commonwealth and State or Territory offences arising out of the same or related facts. Joint trial arrangements provide for a single prosecuting authority to conduct the prosecutions for all charges.
Paragraph 9(2)(b) of the DPP Act allows the Director to authorise a person to sign indictments on his or her behalf. However, this authorisation is very limited in its scope and does not extend to summary offences, committal proceedings or appeals.
Similarly, paragraph 15(1)(da) of the DPP Act provides for a member of the staff of a State or Territory prosecution agency to appear on behalf of the Director in certain proceedings. However, the ability to represent the Director at such proceedings does not include the ability to exercise any of the powers or functions of the Director (such as to institute a prosecution on indictment for an offence against the laws of the Commonwealth).
Item 4 inserts new subsection 31(1B) to allow the Director to delegate certain functions and powers necessary for the conduct of joint trial, to certain persons or classes of persons.
Persons or classes of persons
The persons or classes of persons to whom the Director can delegate functions and powers are set out in new paragraphs 31(1B)(a) - (d). This approach has been taken as the persons who might appropriately be part of a joint trial may vary between jurisdictions, and the descriptions of those persons under State and Territory legislation may differ.
For example, new paragraph 31(1B)(a) would include (but not be limited to) the Director of Public Prosecutions in a State or Territory. Similarly, new paragraph 31(1B)(b) would include (but not be limited to) the staff of a State or Territory Office of Public Prosecutions, regardless of how such persons are described in State or Territory legislation.
Further, new paragraph 31(1B)(c) is intended to cover persons who are authorised to institute or conduct prosecutions under a law of a State or Territory, but who are not performing a similar function to the Director, and who are not members of staff of a State or Territory authority. For example, this paragraph would cover a Crown Prosecutor appointed under the Crown Prosecutors Act 1986 (NSW) who is authorised under that Act to conduct prosecutions. Another example is a person authorised to sign an indictment under subsection 126(2) of the Criminal Procedure Act 1986 (NSW).
Finally, new paragraph 31(1B)(d) is included to cover other possible classes of persons responsible for prosecution activities in a State or Territory but who, due to the structure of the relevant prosecutorial agency in the State or Territory, do not come within the terms of paragraphs 31(1B)(a) to (c).
Functions and powers
The functions and powers that may be delegated to a person under new subsection 31(1B) are those that may be required for the purposes of conducting a joint trial.
The functions and powers set out in new paragraphs 31(1B)(e) - (h) relate to instituting and carrying on a prosecution for a Commonwealth offence, including: proceedings for the commitment of a person for trial, exercising rights of appeal in respect of a prosecution for a Commonwealth offence and doing anything incidental or conducive to the performance of those functions.
New subparagraph 31(1B)(i) enables the Director to delegate additional functions and powers as prescribed by the regulations. This will allow new functions or powers identified as relevant to the conduct of joint trials to be added by regulation, enabling the delegation power to remain flexible and current.
Conferral of functions on a State officer
New subsection 31(1B) allows both powers and functions to be conferred on State officers to facilitate joint trials. Again, this addresses the issue dealt with in O'Donoghue discussed above under item 3.
New subsection 31(1C) is intended to establish that any functions delegated under section 31(1B) are to be exercised voluntarily, and therefore the conferral is not invalid within the reasoning of O'Donoghue .
Items 5, 6 and 7: subsection 31(2) - delegation by Director
Subsection 31(2) of the DPP Act provides that an exercise of a power delegated under section 31 is deemed to have been an exercise of power by the Director.
Items 5, 6 and 7 make corresponding amendments to subsection 31(2) to refer to the performance of functions as well as the exercise of powers. That is, that a function delegated under section 31 will be deemed to have been performed by the Director. These items are necessary because items 2 - 4 amend section 31 to provide for the delegation of both functions and powers.
Item 8: Subsection 31(3) - delegation by Director
Subsection 31(3) of the DPP Act provides that a delegation under section 31 does not prevent the exercise of a power by the Director.
Item 8 makes a corresponding amendment to subsection 31(3) to refer to the performance of functions as well as the exercise of powers. That is, the Director is not prevented from performing a function delegated under section 31. These items are necessary because items 2 - 4 amend section 31 to provide for the delegation of both functions and powers.
Item 9: new section 32A - immunity from civil liability
Currently, persons carrying out powers, functions or duties etc under the DPP Act are exposed to civil liability for their actions and must rely on an arrangement with the Commonwealth to indemnify them for the cost of any legal proceedings taken against them or involving them personally.
Item 9 inserts new provision 32A into the DPP Act to provide certain individuals with immunity from civil proceedings arising out of the performance or exercise of powers, functions, duties or services in good faith under the Act.
New subsection 32A(1) provides that the Director, a member of the staff of the Office, and a person to whom functions or powers are delegated under section 31, are immune from a civil action, suit or proceedings, for acts or omissions done in good faith in the performance or exercise (or purported performance or exercise) of any function, duty or power under, or in relation to, the DPP Act. This immunity will extend to persons to whom functions or powers are delegated under new subsection 31(1B) (as inserted by item 4).
New subsections 32A(2) and (3) provide immunity from civil proceedings to acts done, or omitted to be done, in good faith by a person employed by the Director under subsection 27(3) and persons referred to in section 29 whose services are made available to the Director (eg secondees).
As the Notes to subsections 32A(2) and (3) clarify, the immunity in subsection 32A(1) only applies to a person engaged under subsection 27(3) or section 29 to the extent that the Director's functions or powers have been delegated to that person under section 31. Subsections 32A(2) and (3) would ensure that persons who support the Director in carrying out his or her functions or powers (but do not themselves exercise functions or powers) are covered by the immunity.
Subsection 32(1) of the DPP Act allows the Director and the Chief Executive Officer of the Australian Government Solicitor (AGS) to make arrangements for AGS to perform or exercise all or any of the Director's functions or powers under the Act.
New subsection 32A(4) provides immunity from civil action, suit or proceeding to the AGS for acts or omissions done in good faith by the AGS, in performing a function, or exercising a power, under an arrangement made under subsection 32(1).
Similarly, new subsection 32A(5) provides immunity from civil proceedings to the Chief Executive Officer (CEO) of the AGS or staff of the AGS (employed under subsection 55ZB(1) of the Judiciary Act 1903 ) for an act or omission done in good faith, by the person in assisting the AGS perform a function or exercise a power under an arrangement made pursuant to subsection 32(1).
Subsection 32A(1)-(3) and (5) only provide immunity for individuals. Subsection 32A(4) provides immunity for the AGS as a body corporate. This is considered appropriate as it is the AGS as an entity that is engaged to perform the functions, or exercise the powers of, the Director under an arrangement in subsection 32(1).
Subsection 32A(6) provides that, in subsections 32A(4) and (5), AGS has the same meaning given to it in subsection 32(4). Section 32(4), in defining AGS, refers to Part VIIIB of the Judiciary Act, which establishes AGS.