Director of Public Prosecutions Amendment Regulations 2003 (No. 1) 2003 No. 211
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 211
Issued by the authority of the Attorney-General
Director of Public Prosecutions Act 1983
Director of Public Prosecutions Amendment Regulations 2003 (No. 1)
Section 34 of the Director of Public Prosecutions Act 1983 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, 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.
Section 6 of the Act sets out the functions of the Director of Public Prosecutions (the Director). Paragraph 6(1)(n) includes a power to do anything incidental or conducive to the performance of any of the specified functions. Subsection 6(2) of the Act provides that additional functions may be conferred on the Director by a law of the Commonwealth or may be prescribed.
The Crimes (Superannuation Benefits) Act 1989 (the CSB Act) and Part VA of the Australian Federal Police Act 1979 (the AFP Act) enable courts, on the application of the Director, to make superannuation orders against Commonwealth employees and AFP employees who have been convicted of corruption offences and sentenced to imprisonment for a term longer than 12 months. Such orders, which may be made in favour of the Commonwealth or a Commonwealth authority, enable the Commonwealth to recover the Commonwealth-funded employer component of the employee's superannuation.
The power to enforce superannuation orders is not listed as a function of the Director under subsection 6(1) of the Act, and neither the CSB Act nor the AFP Act expressly gives the Director that function. It is not certain that enforcement of superannuation orders would fall within the incidental power contained in paragraph 6(1)(n) of the Act.
The purpose of the proposed Regulations is to ensure that superannuation orders made under the CSB Act or the AFP Act may be enforced by the Director on behalf of the Commonwealth or a Commonwealth authority. This would be achieved by prescribing the enforcement of such superannuation orders as a function of the Director.
Overview
The Director of Public Prosecutions Amendment Regulations 2003 (No. 1), enacted under the authority of the Attorney-General, aim to address a legislative gap by clarifying and expanding the functions of the Director of Public Prosecutions (DPP). This regulatory measure was introduced to ensure that the DPP has the necessary authority to enforce superannuation orders made under the Crimes (Superannuation Benefits) Act 1989 and Part VA of the Australian Federal Police Act 1979. This amendment is crucial for enabling the Director to effectively recover the Commonwealth-funded employer component of superannuation from employees convicted of corruption offences and sentenced to imprisonment for more than 12 months, thereby facilitating the Commonwealth's financial recovery and upholding the integrity of public service.
Scope and Application
The Director of Public Prosecutions Amendment Regulations 2003 (No. 1) amends the Director of Public Prosecutions Regulations to include the enforcement of superannuation orders as a function of the Director, in accordance with section 34 of the Director of Public Prosecutions Act 1983. This amendment is designed to ensure that the Director can effectively enforce superannuation orders made under the Crimes (Superannuation Benefits) Act 1989 and the Australian Federal Police Act 1979 for Commonwealth and Australian Federal Police employees convicted of corruption offences and sentenced to imprisonment for more than 12 months. The regulations apply to the Director of Public Prosecutions, the Commonwealth, and relevant Commonwealth authorities, thereby extending the Director's functions to include the enforcement of these orders. The geographic scope of these regulations is national, covering all Commonwealth employees across Australia. There are no stated exclusions or exemptions in these regulations, and they do not set any thresholds for their application. The regulations operate within the jurisdictional reach of the Commonwealth and do not extend beyond it.
Key Provisions
The main provisions of the Director of Public Prosecutions Amendment Regulations 2003 (No. 1) relate to the enforcement of superannuation orders under the Crimes (Superannuation Benefits) Act 1989 and the Australian Federal Police Act 1979. Section 3 of the Regulations specifically prescribes the enforcement of superannuation orders as a function of the Director of Public Prosecutions (section 6(2)). This ensures that the Director has the authority to act on behalf of the Commonwealth or a Commonwealth authority to enforce such orders against employees convicted of corruption offences and sentenced to imprisonment for more than 12 months. This is a critical provision as it clarifies that the Director has the necessary powers to enforce these orders, which were previously uncertain.
These Regulations impose specific obligations on the Director of Public Prosecutions, particularly in relation to the enforcement of superannuation orders. Under section 3, the Director is now explicitly empowered to enforce orders made by courts under the CSB Act and AFP Act. This means that the Director must take necessary actions to ensure that these orders are executed, which includes retrieving the Commonwealth-funded employer component of the employee's superannuation. The Regulations also require the Director to liaise with relevant authorities and follow due process to ensure compliance with these orders. The Director's role is thus expanded to include the enforcement of these specific orders, ensuring that the Commonwealth can recover its funds.
Failure to comply with the provisions of these Regulations may result in civil or administrative consequences. While the Regulations themselves do not detail specific penalties for non-compliance, any failure by the Director to enforce superannuation orders could potentially lead to legal challenges or financial implications for the Commonwealth. Additionally, any procedural errors or omissions in enforcing these orders could be subject to judicial review, resulting in further administrative or legal consequences. It is important for the Director to adhere strictly to the guidelines set out in these Regulations to avoid such outcomes.
The maximum penalties or consequences for breaches of these Regulations are not explicitly stated in the text. However, the implications of non-compliance can be significant, including potential financial loss for the Commonwealth and legal repercussions for the Director. The precise penalties would likely be determined by the courts in the event of a breach, taking into account the specific circumstances and the impact of the non-compliance. It is essential that the Director of Public Prosecutions acts within the scope of these Regulations to mitigate any potential negative consequences.