Part 4Miscellaneous
8
s 8: Rep 1990 No 99,
Sch 4.
9Vacation of office
(1)
A Crown Prosecutor vacates office if he or
she:
(a)
dies, or
(b)
resigns the office by instrument in writing
addressed to the Governor, or
(c)
reaches the age of 72 years,
or
(d)
ceases to be an Australian lawyer,
or
(e)
is removed from office by the Governor under
subsection (2), (3) or (4).
(2)
A Crown Prosecutor who fails, without reasonable
excuse, to comply with section 10 is to be removed from office by the
Governor.
(3)
The Governor may remove a Crown Prosecutor from
office for incapacity, incompetence, misbehaviour or unsatisfactory
performance.
(4)
The Governor may also remove a Crown Prosecutor
from office if the Crown Prosecutor:
(a)
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
(b)
becomes a mentally incapacitated person,
or
(c)
absents himself or herself from duty for 14 days
(whether or not wholly or partly consecutive) in any period of 12 months,
except on leave granted by the Attorney General or unless the absence is
occasioned by illness or other unavoidable cause, or
(d)
is convicted in New South Wales of an offence
that is punishable by imprisonment for 12 months or more,
or
(e)
is convicted elsewhere than in New South Wales of
an offence that if committed in New South Wales would be an offence so
punishable.
(5)
Anything done or purporting to have been done by
a Crown Prosecutor after he or she reaches the age of 72 years is nevertheless
as valid as if he or she had not reached that age.
(6)
In this section, Crown Prosecutor
includes the Senior Crown Prosecutor and a Deputy Senior Crown
Prosecutor.
s 9: Am 1990 No 99,
Sch 4; 1995 No 28, Sch 2; 1999 No 94, Sch 4.100; 2007 No 51, Sch 2
[6]–[10]. Subst 2008 No 107, Sch 8 [1]. Am 2011 No 34, Sch 2
[1].
9ASuspension from duty pending decision in relation to
misconduct
(1)
If of the opinion that there may be grounds for a
Crown Prosecutor’s removal from office, the Director of Public
Prosecutions may suspend the Crown Prosecutor from duty pending a decision
being made as to whether or not he or she should be so
removed.
(2)
If the Director of Public Prosecutions so
directs, any salary payable to the Crown Prosecutor in relation to the period
during which he or she is under suspension is to be
withheld.
(3)
If the Crown Prosecutor is removed from office,
any salary so withheld is forfeited to the State unless the Director of Public
Prosecutions otherwise directs.
(4)
A suspension imposed under this section may be
removed by the Director of Public Prosecutions at any
time.
(5)
In this section, Crown Prosecutor
includes the Senior Crown Prosecutor and a Deputy Senior Crown
Prosecutor.
s 9A: Ins 2008 No
107, Sch 8 [2].
10Other work
(1)
The Senior Crown Prosecutor, a Deputy Senior
Crown Prosecutor or a Crown Prosecutor shall not, without the consent of the
Attorney General or the Director:
(a)
engage in the practice of the 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)
The Senior Crown Prosecutor, a Deputy Senior
Crown Prosecutor or a Crown Prosecutor shall not contravene or fail to comply
with any conditions attached to any such consent.
s 10: Am 2007 No 51,
Sch 2 [11].
11Government Sector Employment Act
2013 not to apply
The offices of Senior Crown Prosecutor, Deputy
Senior Crown Prosecutor and Crown Prosecutor are statutory offices and the
Government Sector Employment Act 2013
(including Part 6) does not apply to those offices.
s 11: Subst 2007 No
51, Sch 2 [12]; 2015 No 15, Sch 3.19 [1].
12Remuneration and leave
(1)
The Senior Crown Prosecutor, a Deputy Senior
Crown Prosecutor and a Crown Prosecutor are 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.
(2)
The leave that may be granted to the Senior Crown
Prosecutor, a Deputy Senior Crown Prosecutor or a Crown Prosecutor is to be as
the Attorney General may from time to time determine.
s 12: Am 1987 No 48,
Sch 30. Subst 2007 No 51, Sch 2 [12].
13Acting appointments
(1)
The Attorney General may appoint a person who is
eligible for appointment as such to act in the office of Senior Crown
Prosecutor, Deputy Senior Crown Prosecutor or Crown
Prosecutor.
(2)
The Attorney General may:
(a)
subject to this section, determine the terms and
conditions of appointment, including remuneration and allowances, of a person
acting in the office of Senior Crown Prosecutor, Deputy Senior Crown
Prosecutor or Crown Prosecutor, and
(b)
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
Crown Prosecutor, Deputy Senior Crown Prosecutor or Crown Prosecutor, the
person has and may exercise all the functions of that office and is taken to
be the holder of that office.
(5)
A person may be appointed to act in an office
under this section (and may act in that office) even if the person is of or
above the age at which a holder of the office would vacate the
office.
s 13: Subst 2007 No
51, Sch 2 [12].
14Savings and transitional provisions
(1)
In this section, a reference to an existing Crown
Prosecutor or a person holding a commission as an existing Crown Prosecutor is
a reference to a person holding an appointment under section 5 of The Australian
Courts Act 1828 (9 Geo IV, c 83) or section 572 of the
Crimes Act 1900.
(2)
All appointments under section 5 of The Australian
Courts Act 1828 and section 572 of the Crimes Act 1900 are
revoked.
(3)
The persons holding commissions and paid as
existing Crown Prosecutors immediately before the commencement of this
subsection shall, if eligible to be appointed as Crown Prosecutors under this
Act, be deemed to have been appointed as Crown Prosecutors under this
Act.
(4)
Anything done or omitted before the commencement
of this subsection by an existing Crown Prosecutor shall be deemed to have
been done or omitted by a Crown Prosecutor appointed under this
Act.
(5)
Nothing in this Act affects any proceedings
pending immediately before the commencement of this subsection in which an
existing Crown Prosecutor was appearing, and the Crown Prosecutor may continue
to appear.
(6)
A reference in any other Act, in any instrument
made under any Act or in any other instrument of any kind to a Crown
Prosecutor shall be read as a reference to a Crown Prosecutor appointed under
this Act.
(7)
In the case of a person holding a commission as
an existing Crown Prosecutor immediately before the commencement of this
subsection, the references in sections 8 and 9 to the age of 65 years shall be
read as references to the age of 70 years.
(8)
Section 4 (3A) applies to a Crown Prosecutor
appointed before the commencement of that subsection.
(9)
Until a relevant determination is made and takes
effect under the Statutory and Other Offices
Remuneration Act 1975, a part-time Crown Prosecutor is
entitled to be paid in accordance with the determination in force for the time
being for Crown Prosecutors, but on a pro rata basis (according to time spent
in service), as calculated by the Attorney General.
(10)
Schedule 2 has effect.
s 14: Am 2006 No 23,
Sch 3 [3]; 2007 No 51, Sch 2 [13].