EXPLANATORY STATEMENT
COMMONWEALTH OF AUSTRALIA
DIRECTOR OF PUBLIC PROSECUTIONS REGULATIONS (AMENDMENT)
1990 No. 155
Section 34 of the Director of Public Prosecutions Act 1983 (the Commonwealth DPP Act) provides that the Governor-General may make regulations, not inconsistent with that Act, prescribing matters required or permitted by that Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to that Act.
Paragraph 6(2)(b) of the Commonwealth DPP Act provides for the prescribing of functions of the Director in addition to the statutory functions contained in subsection 6(1).
On 1 July 1990 the Government of the Australian Capital Territory (the Territory) gains effective responsibility for criminal matters in respect of Territory law. This is the effect of section 12 of the ACT Self-Government (Consequential Provisions) Act 1988 which deems a number of Ordinances dealing with criminal matters, that were reserved under section 34 of the Australian Capital Territory (Self-Government) Act 1988, to be Acts of the Territory legislature. The ACT Self-Goverment (Consequential Provisions) Regulations (Amendment) (No. 52 of 1989) amended the Commonwealth DPP Act so that the Commonwealth Director may no longer prosecute offences against laws of the Territory from 1 July 1990. In anticipation of this, the Legislative Assembly for the Territory has enacted the Director of Public Prosecutions Act 1990 (the Territory DPP Act). It is proposed that initially there be no appointment of a Director under the Territory DPP Act, but that the Commonwealth Director perform the functions and exercise the powers of the ‘Director’ under the Territory DPP Act.
The Regulations will enable the Commonwealth Director to perform the functions and exercise the powers of the ‘Director’ under the Territory DPP Act from 1 July 1990 while there is no appointment (or acting appointment) of a Territory Director.
Details of the Regulations are as follows:
Regulation 1: provides that the Regulations are to commence on 1 July 1990.
Regulation 2: amends regulation 3 of the Director of Public Prosecutions Regulations by adding paragraph (c) which gives the Commonwealth Director the function, in respect of matters arising under Territory legislation, of performing the functions of the ‘Director’ under the
Territory DPP Act, while no person holds office as (or is acting in) the position.
Regulation 3: amends the Director of Public Prosecutions Regulations by adding regulation 4 which gives the Commonwealth Director the power, in respect of matters arising under Territory legislation, to exercise the same powers conferred on the ‘Director’ under the Territory DPP Act, while no person holds office as (or is acting in) the position. This regulation is made under paragraph 34(b) of the Act.
Attorney-General
Overview
The Director of Public Prosecutions Regulations (Amendment) 1990 (No. 155) was enacted to address the transition of criminal law responsibilities from the Commonwealth to the Australian Capital Territory (ACT) following the ACT's attainment of self-government. The amendment was necessitated by the ACT Self-Government (Consequential Provisions) Act 1988, which effectively transferred criminal law jurisdiction to the ACT from 1 July 1990. The regulations were introduced to ensure a seamless transfer of prosecutorial functions from the Commonwealth Director of Public Prosecutions to the ACT, pending the appointment of a Director under the new Territory DPP Act. The policy objective of these regulations was to facilitate a smooth transition of authority without creating a gap in the administration of justice during the interim period. Enacted by the Attorney-General under the authority of the Director of Public Prosecutions Act 1983, the regulations aimed to maintain continuity in the prosecution of criminal matters in the ACT during the period when no local Director was appointed.
Scope and Application
The Director of Public Prosecutions Regulations (Amendment) 1990 No. 155 serves to facilitate the transition of prosecutorial responsibilities from the Commonwealth Director to the Government of the Australian Capital Territory (ACT) as of 1 July 1990. These regulations are a direct consequence of the ACT Self-Government (Consequential Provisions) Act 1988 and the ACT Self-Government (Consequential Provisions) Regulations (Amendment) (No. 52 of 1989), which shifted the jurisdiction over criminal matters from the Commonwealth to the ACT. Until such time as an ACT Director of Public Prosecutions is appointed, the Commonwealth Director is authorised to perform and exercise the functions and powers of the ‘Director’ under the Territory DPP Act. Regulation 2 and 3 of the Director of Public Prosecutions Regulations are amended to incorporate these changes, with Regulation 2 providing the Commonwealth Director with the function of performing the roles of the ‘Director’ under the Territory DPP Act, and Regulation 3 granting the Commonwealth Director the necessary powers to act as the ‘Director’ under the same Act. These regulations are designed to ensure a seamless transition and continuity in prosecutorial functions during the interim period.
Key Provisions
The key provisions of the Director of Public Prosecutions Regulations (Amendment) (No. 155 of 1990) focus on the transitional arrangements for criminal prosecutions in the Australian Capital Territory (ACT) as responsibility for such matters shifts from the Commonwealth to the ACT government. Regulation 1 specifies that the Regulations come into effect on 1 July 1990. This date is significant as it marks the transition of criminal law responsibilities from the Commonwealth to the ACT, pursuant to the ACT Self-Government (Consequential Provisions) Act 1988.
Regulation 2 and Regulation 3 detail the specific functions and powers that the Commonwealth Director of Public Prosecutions (DPP) can exercise under the Territory DPP Act during the interim period before a Territory DPP is appointed. Regulation 2 adds a new function to the Commonwealth DPP, allowing them to perform the duties of a Director under the Territory DPP Act, provided no one is formally appointed to that role. Regulation 3 grants the Commonwealth DPP the authority to exercise the powers that would otherwise be held by the Territory DPP, again, under the condition that no one holds or is acting in that office. These regulations are crucial in ensuring continuity in public prosecutions during the transitional period.
The obligations imposed by these regulations primarily concern the Commonwealth DPP. They are tasked with the responsibility of carrying out the functions and exercising the powers of the Territory DPP until such time as a Director is appointed under the Territory DPP Act. This includes making decisions on whether to prosecute, managing ongoing cases, and ensuring that the administration of justice continues smoothly during the transition period.
Failure to comply with these regulations could lead to significant legal consequences. Although the specific offences and penalties are not detailed within the explanatory statement, breaches of regulations made under the Director of Public Prosecutions Act 1983 could potentially result in civil or criminal penalties, depending on the nature and severity of the breach. The exact penalties would be determined by the relevant courts and would likely be aligned with those prescribed under the parent Act and other relevant legislation.