1995
1995
2006-03-28
act
publicgeneral
act.reprint
act-2005-031
allinforce
none
act-1995-028
f1dfffd8-73b1-402c-872c-8f375bd255db
705b6cb0-db56-4dd0-ad25-19588189c978
See
also:
Courts Legislation Amendment Bill
2006
An Act to provide for the appointment and
functions of Public Defenders; and for other purposes.
Part 1Preliminary
1Name of
Act
This Act is the Public Defenders
Act 1995.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Definitions
In this Act:
means an Aboriginal legal service or other
community legal centre within the meaning of section 48H of the Legal Profession Act
1987.
exercise a function includes perform
a duty.
function includes a power, authority
or duty.
legal
practitioner has the same meaning as it has in the Legal Profession Act
1987.
legally
assisted person means a person who is a legally assisted
person within the meaning of the Legal Aid
Commission Act 1979 or who is receiving legal assistance
through a community legal centre.
Part 2Appointment of Public
Defenders
4Appointment of Senior Public
Defender
(1)
The Governor may appoint a Senior Public
Defender.
(2)
The Senior Public Defender has such functions as
are conferred or imposed on the Senior Public Defender by or under this or any
other Act.
(3)
The Senior Public Defender is responsible to the
Attorney General for the due exercise of the Senior Public Defender’s
functions, but nothing in this subsection affects or derogates from the
authority of the Senior Public Defender in respect of the conduct of any
proceedings.
(4)
Schedule 1 has effect in relation to the Senior
Public Defender.
5Appointment of Deputy Senior
Public Defenders
(1)
The Governor may appoint one or more Deputy
Senior Public Defenders.
(2)
A Deputy Senior Public Defender has such
functions as are conferred or imposed on Deputy Senior Public Defenders by or
under this or any other Act.
(3)
A Deputy Senior Public Defender is responsible to
the Senior Public Defender for the due exercise of the Deputy Senior Public
Defender’s functions, but nothing in this subsection affects or
derogates from the authority of a Deputy Senior Public Defender in respect of
the conduct of any proceedings.
(4)
Schedule 1 has effect in relation to a Deputy
Senior Public Defender.
6Appointment of Public
Defenders
(1)
The Governor may appoint such number of Public
Defenders as the Governor thinks necessary.
(2)
A Public Defender has such functions as are
conferred or imposed on Public Defenders by or under this or any other
Act.
(3)
A Public Defender is responsible to the Senior
Public Defender for the due exercise of the Public Defender’s functions,
but nothing in this subsection affects or derogates from the authority of a
Public Defender in respect of the conduct of any
proceedings.
(4)
Schedule 1 has effect in relation to a Public
Defender.
7Acting
appointments
(1)
The Attorney General may appoint a person who is
eligible for appointment as such to act in the office of Senior Public
Defender, Deputy Senior Public Defender or Public
Defender.
(2)
The Attorney General:
(a)
may, subject to this section, determine the terms
and conditions of appointment, including remuneration and allowances, of a
person acting in the office of Senior Public Defender, Deputy Senior Public
Defender or Public Defender, and
(b)
may terminate such an appointment at any
time.
(3)
A person may not act or be appointed to act under
this section for a period of more than 12 months at a
time.
(4)
While a person is acting in the office of Senior
Public Defender, Deputy Senior Public Defender or Public Defender, the person
has all the functions of that office and is taken to be the holder of that
office.
Part 3Functions of Public
Defenders
8Functions of Senior Public
Defender
(1)
The functions of the Senior Public Defender
include the following:
(a)
to make arrangements and give directions for the
disposition of the work of Public Defenders and so to ensure the effective and
efficient conduct of that work,
(b)
to provide advice and assistance to, and to
monitor the work and activities of, Public Defenders,
(c)
to consult with the Legal Aid Commission and with
community legal centres about, and to enter into arrangements with the Legal
Aid Commission and community legal centres for, the provision of legal
assistance to legally assisted persons,
(d)
to advise the Attorney General, whether on the
request of the Attorney General or otherwise, on matters relating to the
reform of the law relevant to the work and activities of Public
Defenders.
(2)
The Senior Public Defender also has all the
functions of a Public Defender.
9Functions of Deputy Senior
Public Defenders
(1)
The functions of a Deputy Senior Public Defender
include that of assisting the Senior Public Defender, as the Senior Public
Defender requires.
(2)
A Deputy Senior Public Defender also has all the
functions of a Public Defender.
10Functions of Public
Defenders
(1)
The functions of a Public Defender include the
following:
(a)
to advise and appear in criminal proceedings, and
other proceedings in the nature of criminal proceedings, on behalf of legally
assisted persons,
(b)
to advise on matters referred to the Public
Defender by the Senior Public Defender,
(c)
to carry out such other related functions as may
be specified by the Attorney General after consultation with the Senior Public
Defender.
(2)
The reference in subsection (1) (a) to
proceedings in the nature of criminal proceedings extends to:
(a)
committals, trials, appeals and ancillary
proceedings (such as bail applications), and
(b)
proceedings that are brought against a person for
the purpose of obtaining an order for the detention of the person in prison,
in a hospital for the detention of mentally incapacitated persons or in any
other place of detention, and
(c)
proceedings that are brought by a person for the
purpose of securing the person’s release from detention in prison, in a
hospital for the detention of mentally incapacitated persons or in any other
place of detention.
11Guidelines
(1)
The Senior Public Defender may, by order in
writing, establish guidelines with respect to the exercise of the Public
Defenders’ functions under this Act.
(2)
Guidelines may not be established in relation to
particular cases.
(3)
A Public Defender is subject to any guidelines in
force under this section.
12Recovery of costs from
community legal centres
The Senior Public Defender may, after
consultation with the Legal Aid Commission, enter into arrangements with
community legal centres for the recovery of costs associated with the
provision by Public Defenders of legal assistance to persons who are referred
to Public Defenders by community legal centres.
Part 4Miscellaneous
13Staff
(1)
Such staff as may be necessary to enable the
Senior Public Defender to exercise the Senior Public Defender’s
functions are to be employed under Part 2 of the Public
Sector Management Act 1988.
(2)
The Senior Public Defender may arrange for the
use of the services of any staff or facilities of a government department, an
administrative office or a public or local authority.
14Delegation
The Senior Public Defender may delegate
to:
(a)
a Deputy Senior Public Defender,
or
(b)
a Public Defender,
the exercise of any of the Senior Public
Defender’s functions (other than this power of
delegation).
15Attorney General may arrange
secondments
The Attorney General may make arrangements with
the Senior Public Defender for the secondment of Public Defenders to act as
Crown Prosecutors or to assist in the conduct of inquiries or investigations
under the Royal Commissions Act
1923 or the Independent
Commission Against Corruption Act 1988 or other such
inquiries or investigations.
16Protection from
liability
A matter or thing done or omitted by the Senior
Public Defender, a Deputy Senior Public Defender or a Public Defender does not
subject the Senior Public Defender, Deputy Senior Public Defender or Public
Defender to any action, liability, claim or demand, if the matter or thing was
done or omitted in good faith for the purposes of executing this or any other
Act.
17Annual
report
(1)
As soon as practicable after 30 June, but on or
before 31 December, in each year, the Senior Public Defender must prepare and
forward to the Attorney General a report of the work and activities of Public
Defenders for the 12 months ending on 30 June in that
year.
(2)
The Attorney General must lay the report or cause
it to be laid before both Houses of Parliament as soon as practicable after
receiving the report.
18External review
committee
(1)
The Attorney General may establish an external
review committee to monitor the work and activities of Public
Defenders.
(2)
The constitution, procedure and functions of the
committee are to be as prescribed by the regulations.
19Regulations
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
20Repeal of Public Defenders Act
1969
The Public Defenders Act
1969 is repealed.
21
s 21: Rep 1999 No 85,
Sch 4.
22Savings, transitional and
other provisions
Schedule 3 has effect.
23Review of
Act
(1)
The Attorney General is to review this Act to
determine whether the policy objectives of the Act remain valid and whether
the terms of the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the date of assent to this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
Schedule 1Provisions relating to Public
Defenders
(Sections 4, 5 and
6)
1Definitions
In this Schedule:
Officer means the Senior Public
Defender, a Deputy Senior Public Defender or a Public Defender.
public
servant means an officer or employee of the Public Service
or an employee of a statutory body.
Senior
Officer means the Senior Public Defender or a Deputy Senior
Public Defender.
statutory
body means any body constituted by or under an Act that is
declared by proclamation to be a statutory body for the purposes of this
Schedule.
2Eligibility for
appointment
(1)
A person must be a legal practitioner of at least
7 years’ standing to be eligible for appointment as the Senior Public
Defender.
(2)
A person must be a legal practitioner of at least
5 years’ standing to be eligible for appointment as a Deputy Senior
Public Defender.
(3)
A person must be a legal practitioner to be
eligible for appointment as a Public Defender.
3Term of
office
(1)
The Senior Public Defender holds office for such
period (not exceeding 7 years) as is specified in the relevant instrument of
appointment, but is eligible for reappointment.
(2)
A Deputy Senior Public Defender holds office for
such period (not exceeding 5 years) as is specified in the relevant instrument
of appointment, but is eligible for reappointment.
(3)
A Public Defender (other than a Senior Officer)
holds office until the Public Defender vacates the office under this
Act.
(4)
A Senior Officer who was a Public Defender when
appointed a Senior Officer remains a Public Defender while holding office as a
Senior Officer and, subject to this Act, after ceasing to hold that
office.
4Remuneration and
leave
(1)
An Officer is entitled to be paid:
(a)
remuneration in accordance with the Statutory and Other Offices Remuneration Act
1975, and
(b)
such travelling and subsistence allowances as the
Attorney General may from time to time determine in respect of the
Officer.
(2)
The leave that may be granted to an Officer is to
be as the Attorney General may from time to time determine in respect of the
Officer.
5Vacation of
office
(1)
An Officer is taken to have vacated office if the
Officer:
(a)
dies, or
(b)
resigns the office by instrument in writing
addressed to the Attorney General, or
(c)
ceases to be a legal practitioner,
or
(d)
is removed from office by the Governor under
subclause (2).
(2)
The Governor may remove an Officer from
office:
(a)
for incapacity, incompetence, misbehaviour or
unsatisfactory performance, or
(b)
if the Officer becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit, or
(c)
if the Officer becomes a mentally incapacitated
person, or
(d)
if the Officer absents himself or herself from
duty for 14 days (whether or not wholly or partly consecutive) in any period
of 12 months, except on authorised leave or unless the absence is occasioned
by illness or other unavoidable cause, or
(e)
if the Officer is convicted in New South Wales of
an offence punishable by imprisonment for 12 months or upwards or is convicted
elsewhere of an offence that, if committed in New South Wales, would be an
offence so punishable, or
(f)
if the Officer fails, without reasonable excuse,
to comply with clause 6.
6Other
work
(1)
An Officer must not, without the consent of the
Attorney General or (except in the case of the Senior Public Defender) the
Senior Public Defender:
(a)
engage in the practice of law (whether within or
outside New South Wales) outside the duties of his or her office,
or
(b)
engage in paid employment outside the duties of
his or her office.
(2)
An Officer must not contravene or fail to comply
with any conditions attached to any such consent.
7Application of Public Sector Management Act
1988
The Public Sector
Management Act 1988 (Part 8 included) does not apply to or
in respect of the appointment of an Officer and an Officer is not, as an
Officer, subject to that Act.
8Rights of certain former
public servants
(1)
This clause applies to an Officer who,
immediately before being appointed as an Officer, was:
(a)
a public servant, or
(b)
a person in respect of whom provision was made by
any Act for the retention of any rights accrued or accruing to the person as a
public servant.
(2)
Subject to the terms of his or her appointment as
an Officer, an Officer:
(a)
retains any rights accruing to the Officer as a
public servant, and
(b)
is entitled to receive any deferred or extended
leave,
as if he or she had continued to be a public servant
during his or her term of office as an Officer.
(3)
An Officer’s service as an Officer is taken
to be service as a public servant for the purposes of any law under which any
rights of the kind referred to in subclause (2) (a) accrued or were accruing
or by which any entitlement referred to in subclause (2) (b) is
conferred.
9Special arrangements for Crown
Prosecutors appointed as Public Defenders
(1)
A person appointed as a Senior Officer who,
immediately before the appointment, held office as a Crown Prosecutor is taken
to have been appointed also as a Public Defender.
(2)
Any such Senior Officer remains a Public Defender
while holding office as a Senior Officer and, subject to this Act, after
ceasing to hold that office.
sch 1: Am 1999 No 94,
Sch 4.155; 2005 No 31, Sch 12 [1].
Schedule 2
sch 2: Rep 1999 No
85, Sch 4.
Schedule 3Savings, transitional and
other provisions
(Section 22)
Part 1Preliminary
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of the following
Acts:
this Act
Courts Legislation Amendment Act
2005
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
day.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
Part 2Provisions consequent on the
enactment of this Act
2Definitions
In this Part:
former
Act means the Public Defenders Act
1969.
public
servant means an officer or employee of the Public Service
or an employee of a statutory body.
statutory
body means any body constituted by or under an Act that is
declared by proclamation to be a statutory body for the purposes of this
Part.
3Saving of existing
appointments
(1)
Any person who, immediately before the
commencement of this subclause, was a Public Defender under the former Act
(including both the Senior Public Defender and the Deputy Senior Public
Defender) is taken to have been appointed under this Act as a Public Defender
on the same conditions as to remuneration and allowances (subject to
subclauses (2) and (3)) as those on which the person held office as Public
Defender immediately before that commencement.
(2)
The person who, immediately before the
commencement of this subclause, was the Senior Public Defender (Martin
Langford SIDES, Q.C.) is taken to have been appointed under this Act, for a
period of 7 years beginning on the commencement of this subclause, as the
Senior Public Defender on the same conditions as to remuneration and
allowances as those on which the person held office as Senior Public Defender
immediately before that commencement.
(3)
The person who, immediately before the
commencement of this subclause, was the Deputy Senior Public Defender (Michael
Anthony GREEN, Q.C.) is taken to have been appointed under this Act, for a
period of 5 years beginning on the commencement of this subclause, as a Deputy
Senior Public Defender on the same conditions as to remuneration and
allowances as those on which the person held office as Deputy Senior Public
Defender immediately before that commencement.
4Preservation of rights of
certain former public servants
(1)
This clause applies to a Public Defender
appointed under the former Act who, immediately before being so appointed,
was:
(a)
a public servant, or
(b)
a person in respect of whom provision was made by
any Act for the retention of any rights accrued or accruing to the person as a
public servant.
(2)
A person who ceases to be a Public Defender by
resignation is entitled to be appointed to some position in the Public Service
or in the relevant statutory body, as the case requires, not lower in
classification and salary than that which the person held immediately before
being appointed as a Public Defender under the former
Act.
5Preservation of rights of
other former public servants
(1)
This clause applies to a Public Defender
appointed under the former Act who, immediately before being so appointed, was
the holder of a full-time office constituted by an Act and who, immediately
before being appointed to that office, was:
(a)
a public servant, or
(b)
a person in respect of whom provision was made by
any Act for the retention of any rights accrued or accruing to the person as a
public servant.
(2)
A person who ceases to be a Public Defender has
such rights, if any, to appointment to a position in the Public Service or in
the relevant statutory body, as the case requires, as were set out in the
terms of his or her appointment as a Public Defender under the former Act or
as are agreed on by the person and by or on behalf of the
Government.
sch 3: Am 2005 No 31,
Sch 12 [2] [3].
Historical
notes
Table of amending
instruments
Public Defenders Act
1995 No 28. Assented to 19.6.1995. Date of commencement,
1.7.1995, sec 2 and GG No 79 of 30.6.1995, p 3435. This Act has been amended
as follows:
1999
No
85
Statute Law (Miscellaneous
Provisions) Act (No 2) 1999. Assented to 3.12.1999.
Date of commencement of Sch 4, assent, sec 2
(1).
No
94
Crimes Legislation Amendment
(Sentencing) Act 1999. Assented to 8.12.1999.
Date of commencement of Sch 4.155, 1.1.2000, sec 2 (1)
and GG No 144 of 24.12.1999, p 12184.
2005
No
31
Courts Legislation Amendment Act
2005. Assented to 15.6.2005.
Date of commencement of Sch 12, assent, sec 2
(1).
Table of
amendments
Sec
21
Rep 1999 No
85, Sch 4.
Sch
1
Am 1999 No
94, Sch 4.155; 2005 No 31, Sch 12 [1].
Sch
2
Rep 1999 No
85, Sch 4.
Sch
3
Am 2005 No
31, Sch 12 [2] [3].