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Public consultations on the review of the Online Safety Act have raised calls to grant the Online Safety Commission prosecutorial powers, as it currently holds only civil enforcement powers.

Law Reform Commissioner David Solvalu warns this could raise concerns over prosecutorial bias if the Commission handles both civil and criminal matters.

David Solvalu pointed to the Fijian Competition and Consumer Commission, noting that while the state entity holds both powers, it manages to keep those roles separate.

“FCCC Act specifically says that where they have the offenses for which they can bring criminal proceedings, civil proceedings do not lie, and vice versa. So they’re supposed to only choose one to avoid the risk of prosecutorial bias. And this could be a challenge if OSC needed to split its act in half and say, we will only prosecute criminals here.”

Solvalu says that criminal enforcement is also constrained by budget limitations, noting the Commission operates on an allocation of just $1 million.

“If you have an organization that take on both roles, then you would need a significant budget to cater for it. It’s also the expertise that gets split. They have to develop expertise in both civil and criminal enforcement, have separate teams for it so that there’s no bias issues.”

He says the commission would need sufficient funds to have develop respective team expertise in both civil and criminal enforcement to ensure that there is no issues of biasness.
Online Safety Commissioner Filipe Batiwale says this finding ensures the rule of law is upheld.

“It’s their view that that’s something that should be left for the DPP and the police to ensure that there’s independence and there’s no risk to prosecutorial bias.”

The Law Reform Commission recommends that the OSC remain a civil enforcement body, but be granted more robust civil enforcement powers.