An Act to create the office of Crown Prosecutor and to confer functions on the Crown Prosecutors; and for other purposes.
Part 1 Preliminary
1 Name of Act
This Act may be cited as the Crown Prosecutors Act 1986.
2 Commencement
(1) Sections 1 and 2 shall commence on the date of assent to this Act.(2) Except as provided by subsection (1), this Act shall commence on such day or days as may be appointed by the Governor and notified by proclamation published in the Gazette.
3 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:Director means the Director of Public Prosecutions.indictable offence means an offence (including a common law offence) that may be prosecuted on indictment.legal practitioner has the same meaning as it has in the Legal Profession Act 1987.offence means an offence against the laws of the State.part-time Crown Prosecutor means a Crown Prosecutor exercising his or her functions as a Crown Prosecutor on a part-time basis, as provided by an agreement referred to in section 4 (3A).(2) In this Act:(a) a reference to a function includes a reference to a power, authority and duty, and(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.s 3: Am 1995 No 28, Sch 2; 2006 No 23, Sch 3 [1].
Part 2 The Crown Prosecutors
4 Crown Prosecutors
(1) The Governor may appoint such number of Crown Prosecutors as the Governor thinks necessary.(2) A person is not eligible to be appointed as a Crown Prosecutor unless the person is a legal practitioner.(3) A Crown Prosecutor shall have and may exercise the functions conferred or imposed on Crown Prosecutors by or under this or any other Act.(3A) A Crown Prosecutor may, by agreement in writing entered into with the Director of Public Prosecutions, exercise his or her functions as a Crown Prosecutor on a part-time basis.(4) A Crown Prosecutor is responsible to the Director for the due exercise of the Crown Prosecutor’s functions.(5) Schedule 1 has effect.s 4: Am 1995 No 28, Sch 2; 2006 No 23, Sch 3 [2].
Part 3 Functions
5 Functions
(1) The functions of a Crown Prosecutor are:(a) to conduct, and appear as counsel in, proceedings on behalf of the Director,(b) to find a bill of indictment in respect of an indictable offence, whether or not the person concerned has been committed for trial in respect of the offence,(c) to advise the Attorney General or Director in respect of any matter referred for advice by either of them, and(d) to carry out such other functions of counsel as the Attorney General or Director approves.(2) Functions under subsection (1) (b) shall be exercised in the name and on behalf of the Director.(3) A Crown Prosecutor does not have the function of determining that no bill of indictment be found or directing that no further proceedings be taken against a person.
6 Disposition of work
The Director may make arrangements or give directions for the disposition of the work of the Crown Prosecutors.
7 Offences under Commonwealth laws
If a Crown Prosecutor, with the consent of the Attorney General, holds an appointment, commission or authority to prosecute offences against laws of the Commonwealth, the Crown Prosecutor may institute and conduct (in accordance with the terms of the appointment, commission or authority) prosecutions for such offences.
7A Attorney General may arrange secondments
The Attorney General may make arrangements with the Director for the secondment of Crown Prosecutors to act as Public Defenders 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.s 7A: Ins 1995 No 28, Sch 2.
Part 4 Miscellaneous
8 (Repealed)
s 8: Rep 1990 No 99, Sch 4.
9 Vacation of office
(1) A Crown Prosecutor shall be deemed to have vacated office if the Crown Prosecutor:(a) dies,(b) resigns the office by instrument in writing addressed to the Governor, or(c) ceases to be a legal practitioner, or(d) is removed from office by the Governor under subsection (2) or (3).(2) If a 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,(b) becomes a temporary patient or a continued treatment patient within the meaning of the Mental Health Act 1958, a forensic patient within the meaning of the Mental Health Act 1983 or a protected person within the meaning of the Protected Estates Act 1983,(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, orthe Crown Prosecutor shall be removed from office by the Governor.(d) fails, without reasonable excuse, to comply with section 10,(3) The Governor may remove a Crown Prosecutor from office:(a) for incapacity, incompetence or misbehaviour, or(b) if the Crown Prosecutor is:(i) convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or upwards, or(ii) convicted elsewhere than in New South Wales of an offence that if committed in New South Wales would be an offence so punishable.(4) Anything done or purporting to have been done by a Crown Prosecutor after the Crown Prosecutor has reached the age of 65 years is nevertheless as valid as if the Crown Prosecutor had not reached that age.s 9: Am 1990 No 99, Sch 4; 1995 No 28, Sch 2; 1999 No 94, Sch 4.100.
10 Other work
(1) 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) A Crown Prosecutor shall not contravene or fail to comply with any conditions attached to any such consent.
The Public Service Act 1979 does not apply to or in respect of the appointment of a Crown Prosecutor and a Crown Prosecutor is not, as Crown Prosecutor, subject to that Act.
12 Remuneration and leave
(1) A Crown Prosecutor 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 Crown Prosecutor.(2) The leave which may be granted to a Crown Prosecutor shall be as the Attorney General may from time to time determine in respect of the Crown Prosecutors.s 12: Am 1987 No 48, Sch 30.
13 Acting Crown Prosecutors
(1) The Attorney General may appoint a person who is eligible for appointment as a Crown Prosecutor to act as 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 as a 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 as a Crown Prosecutor, the person has and may exercise all the functions of a Crown Prosecutor and shall be deemed to be a Crown Prosecutor.
14 Savings 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.s 14: Am 2006 No 23, Sch 3 [3].
Schedule 1 Certain rights of Crown Prosecutors
(Section 4 (5))
1 Definition
In this Schedule:statutory body means any body declared under clause 4 to be a statutory body for the purposes of this Schedule.
2 Preservation of rights of Crown Prosecutor previously public servant etc
(1) Subject to subclause (2) and to the terms of appointment, if a Crown Prosecutor was, immediately before being appointed as a Crown Prosecutor:(a) an officer of the Public Service,(b) a contributor to a superannuation scheme,(c) an officer employed by a statutory body, orhe or she:(d) 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 an officer or employee,(e) shall retain any rights accrued or accruing to him or her as such an officer, contributor or person,(f) may continue to contribute to any superannuation scheme to which he or she was a contributor immediately before being appointed as a Crown Prosecutor, andas if he or she had continued to be such an officer, contributor or person during his or her service as a Crown Prosecutor and:(g) is entitled to receive any deferred or extended leave and any payment, pension or gratuity,(h) his or her service as a Crown Prosecutor shall be deemed to be service as an officer or employee for the purpose of any law under which those rights accrued or were accruing, under which he or she continues to contribute or by which that entitlement is conferred, and(i) he or she shall be deemed to be an officer or employee for the purposes of the superannuation scheme to which he or she is entitled to contribute under this clause.(2) If a Crown Prosecutor would, but for this subclause, be entitled under subclause (1) to contribute to a superannuation scheme or to receive any payment, pension or gratuity under the scheme:(a) he or she shall not be so entitled on becoming (whether on appointment as a Crown Prosecutor or at any later time while holding office as a Crown Prosecutor) a contributor to any other superannuation scheme, and(b) the provisions of subclause (1) (i) cease to apply to or in respect of him or her in any case where he or she becomes a contributor to any such other superannuation scheme.(3) Subclause (2) does not prevent the payment to a Crown Prosecutor on his or her ceasing to be a contributor to a superannuation scheme of such amount as would have been payable to him or her if he or she had ceased, by resignation, to be an officer or employee for the purposes of the scheme.(4) A Crown Prosecutor is not, in respect of the same period of service, entitled to claim a benefit under this Act and another Act.(5) In this clause:superannuation scheme means a scheme, fund or arrangement under which any superannuation or retirement benefits are provided and which is established by or under any Act.
3 Crown Prosecutor entitled to re-appointment to former employment in certain cases
(1) A person who:(a) ceases to be a Crown Prosecutor by resignation, and(b) was, immediately before being appointed as a Crown Prosecutor:(i) an officer of the Public Service, or(ii) an officer or employee of a statutory body,is entitled to be appointed to some position in the Public Service or the service of that statutory body, as the case may be, not lower in classification and salary than that which the person held immediately before being appointed as a Crown Prosecutor.(c) (Repealed)(2) Where subclause (1) does not apply to a person who:(a) was, immediately before being appointed to a full-time office constituted by an Act, an officer or employee referred to in subclause (1) (b), andthe person shall have such rights, if any, to appointment as such an officer or employee, in the event of ceasing to be a Crown Prosecutor, as are specified in the instrument of appointment as a Crown Prosecutor or as are agreed on by the person and by or on behalf of the Government.(b) is after that appointment appointed as a Crown Prosecutor,
4 Declaration of statutory bodies
The Governor may, by proclamation published in the Gazette, declare any body constituted by or under any Act to be a statutory body for the purposes of this Schedule.
sch 1: Am 1991 No 17, Sch 1.