An Act to create the office of Director of Public Prosecutions and to confer functions on the Director of Public Prosecutions; and for other purposes.
Part 1 Preliminary
1 Name of Act
This Act may be cited as the Director of Public Prosecutions 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:appeal includes any proceedings in the nature of an appeal, including:(a) any proceedings under Part 3, 4 or 5 of the Crimes (Appeal and Review) Act 2001, and(b) any proceedings referred to in section 69 of the Supreme Court Act 1970.committal proceedings means proceedings before a Magistrate for the purpose of committing an accused person for trial or sentence.coroner includes any person exercising any of the jurisdiction or functions of a coroner.Deputy Director means a Deputy Director of Public Prosecutions.Director means the Director of Public Prosecutions.indictable offence means an offence (including a common law offence) that may be prosecuted on indictment.offence means an offence against the laws of the State.Officer means the Director, a Deputy Director, the Solicitor or a member of the staff referred to in section 32.prescribed summary offence means a summary offence of a kind prescribed by the regulations for the purposes of this Act.prosecutor includes an informant, a complainant and an applicant under the Crimes (Domestic and Personal Violence) Act 2007.regulations means regulations under this Act.Solicitor means the Solicitor for Public Prosecutions.summary offence means an offence that is not an indictable offence.(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 1998 No 137, Sch 2.9; 2001 No 121, Sch 2.84 [1]–[3]; 2006 No 73, Sch 3.10 [1]; 2007 No 80, Sch 2.11 [1]; 2015 No 15, Sch 2.15; 2017 No 55, Sch 3.4 [1].
Part 2 Senior Officers
3A Guidelines for Senior Officer appointments
The Attorney General may issue guidelines as to the process for the selection of a person to be proposed for appointment (including reappointment) to any office under this Act. The guidelines are not mandatory and a failure to comply with them does not affect the validity of an appointment.s 3A: Ins 2007 No 51, Sch 1 [1].
4 Director
(1) The Governor may appoint a Director of Public Prosecutions.(2) The Director shall have and may exercise the functions conferred or imposed on the Director by or under this or any other Act.(3) The Director is responsible to the Attorney General for the due exercise of the Director’s functions, but nothing in this subsection affects or derogates from the authority of the Director in respect of the preparation, institution and conduct of any proceedings.
4A Veto of proposed appointment of Director
(1) A person is not to be appointed as Director until:(a) a proposal that the person be appointed has been referred to the Committee on the Office of the Ombudsman under section 31BA of the Ombudsman Act 1974, and(b) the period that the Committee has under that section to veto the proposed appointment has ended without the Committee having vetoed the proposed appointment or the Committee notifies the Minister that it has decided not to veto the proposed appointment.(2) A person may be proposed for appointment on more than one occasion.(3) In this section, appointment includes re-appointment.s 4A: Ins 1992 No 43, Sch 1.
5 Deputy Directors
(1) The Governor may appoint one or more Deputy Directors of Public Prosecutions.(2) A Deputy Director shall have and may exercise the functions conferred or imposed on a Deputy Director by or under this or any other Act.(3) A Deputy Director is responsible to the Director for the due exercise of the Deputy Director’s functions.
6 Solicitor for Public Prosecutions
(1) The Governor may appoint a Solicitor for Public Prosecutions.(2) The Solicitor shall have and may exercise the functions conferred or imposed on the Solicitor by or under this or any other Act.(3) The Solicitor is responsible to the Director for the due exercise of the Solicitor’s functions.
Part 3 Functions
7 Principal functions
(1) The principal functions and responsibilities of the Director are:(a) to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court,(b) to institute and conduct, on behalf of the Crown, appeals in any court in respect of any such prosecution, and(c) to conduct, on behalf of the Crown as respondent, any appeal in any court in respect of any such prosecution.(2) The Director has the same functions as the Attorney General in relation to:(a) finding a bill of indictment, or determining that no bill of indictment be found, in respect of an indictable offence, in circumstances where the person concerned has been committed for trial,(b) directing that no further proceedings be taken against a person who has been committed for trial or sentence, and(c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial.
8 Instituting other proceedings
(1) The Director may institute and conduct:(a) committal proceedings for indictable offences,(b) proceedings for summary offences in any court, and(c) summary proceedings for indictable offences that may be dealt with summarily in the Local Court.(2) If the Director has instituted any such proceeding, the Director may:(a) institute and conduct, on behalf of the Crown or the prosecution, appeals in any court arising from the proceeding, and(b) conduct, as respondent, appeals in any court arising from the proceeding.(3) The Director may not exercise any function under this section in respect of a summary offence, unless:(a) the offence is a prescribed summary offence, or(b) the person otherwise responsible for the prosecution or proceeding concerned has consented in writing.s 8: Am 2007 No 94, Sch 1.30.
9 Taking over prosecutions or proceedings
(1) If a prosecution or proceeding in respect of an offence (whether it is an indictable offence or a summary offence) has been instituted by a person other than the Director, the Director may take over the matter and:(a) carry on the prosecution or proceeding,(b) carry on, on behalf of the prosecution or as respondent, an appeal in any court in respect of the offence,(c) institute and conduct, on behalf of the prosecution, an appeal in any court in respect of the offence, and(d) conduct, as respondent, an appeal in any court in respect of the offence.(2) The Director may not take over a matter under this section involving a summary offence, unless:(a) the offence is a prescribed summary offence, or(b) a person otherwise responsible for the matter has consented in writing.(3) Except as provided by subsection (2), the Director may take over a matter under this section whether or not the person otherwise responsible for the matter consents.(4) If the Director takes over a matter under this section:(a) the Director shall, as from the time when the Director complies with section 10 (1) in relation to the matter, be deemed to be the prosecutor in connection with the prosecution or proceeding concerned, and(b) the Director may decline to proceed further in the prosecution or to carry the proceeding further.(5) For the purposes of this section, proceeding includes any application, appeal or other proceeding commenced under Division 1A of Part 3 of the Confiscation of Proceeds of Crime Act 1989.s 9: Am 1987 No 209, Sch 10 (1); 2006 No 107, Sch 1.12.
9A Handing back of matters to original prosecutor
(1) If a prosecution or proceeding that has been taken over by the Director under section 9 is remitted to the Local Court, the Director may hand the matter back to the prosecutor from whom it was taken over (the original prosecutor) or, if the original prosecutor (being a holder of a position in the Public Service or as a member of the NSW Police Force) no longer holds that position, to the person now holding that position (the original prosecutor’s successor).(2) If a matter is handed back under this section, the original prosecutor or the original prosecutor’s successor, as the case may be, shall, as from the time when the Director complies with section 10 (1A) in relation to the matter, be deemed to be the prosecutor in connection with the matter.s 9A: Ins 2008 No 53, Sch 11 [1]. Am 2015 No 15, Sch 3.20 [1].
10 Director to inform court etc when taking over, or handing back, proceedings
(1) If the Director decides to take over a matter in accordance with section 9, the Director shall, as soon as practicable:(a) by notice in writing, inform the person otherwise responsible for the matter, andthat the Director has taken over the matter.(b) if the matter is pending before a court:(i) by notice in writing, inform the registrar or other proper officer of the court in which the prosecution or proceeding concerned is to be heard, or(ii) if the prosecution or proceeding is being heard by a Judge or Magistrate—in such manner as the Director thinks fit, inform the Judge or Magistrate,(1A) If the Director hands a matter back in accordance with section 9A, the Director shall, as soon as practicable:(a) by notice in writing, inform the original prosecutor (or the original prosecutor’s successor) referred to in section 9A, andthat the Director has handed the matter back to the original prosecutor (or the original prosecutor’s successor).(b) by notice in writing, inform the registrar or other proper officer of the Local Court in which the prosecution or proceeding concerned is to be heard,(2) Failure by the Director to notify or inform does not affect any of the Director’s functions in relation to the matter.s 10: Am 2001 No 121, Sch 2.84 [4] [5]; 2008 No 53, Sch 11 [2].
11 Consents
(1) The Director may consent to prosecutions for offences, being offences of a kind in relation to which an order under subsection (2) is in force.(2) A person who has, under a law of the State, the power to consent to prosecutions for offences of a particular kind may, by order published in the Gazette, authorise the Director to consent to prosecutions for offences of that kind.(3) Such an authorisation may not be given by a person who has that power by virtue of an authorisation granted to the person by another person.(4) The mere giving of an authorisation under this section does not prevent the giving of a consent by a person who, but for this section, would have power to give a consent.(5) If the Director consents to a prosecution for an offence, being an offence of a kind to which an order under subsection (2) is in force, the prosecution may be instituted and conducted without the consent of any other person.(6) The Director shall notify the person who gives an authorisation under this section of the giving or refusing of consent under the authorisation.(7) If the Director gives or refuses consent under an authorisation under this section, the person who gives the authorisation is bound by the Director’s decision.(8) In this section:consent includes authorisation, sanction and any similar authority.
12 Coroners
The Director may, with the consent of the coroner, assist a coroner in any inquest or inquiry.
13 Guidelines to Crown Prosecutors etc by Director
(1) The Director may, by order in writing, furnish guidelines to the Deputy Directors, the Solicitor and the Crown Prosecutors with respect to the prosecution of offences, including guidelines as to the exercise of specified functions (whether statutory or not).(2) Guidelines may not be furnished in relation to particular cases.
14 Recommendations and guidelines to police etc by Director
(1) The Director may recommend to:(a) the Commissioner of Police, orthat proceedings be instituted in respect of any offence.(b) any other person who:(i) conducts investigations in relation to offences, or(ii) institutes or conducts prosecutions for offences,(2) The Director may, by order in writing, and after consultation with the Attorney General, furnish guidelines to the Commissioner of Police or any such person with respect to the prosecution of indictable offences or prescribed summary offences.(3) Guidelines may not be furnished in relation to particular cases.
15 Provisions relating to guidelines
(1) The Director shall:(a) give to the Attorney General a copy of each guideline furnished under this Part, and(b) include in a report under section 34:(i) a copy of each guideline furnished during the period to which the report relates, and(ii) the title of, and a brief description of any publication containing, each guideline furnished as in force at the end of that period.(2) The persons to whom guidelines are furnished under this Part are subject to the guidelines.s 15: Am 1997 No 55, Sch 1.4.
15A Disclosures by law enforcement officers
(1) Law enforcement officers investigating alleged offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.(1A) The duty of disclosure arises only if the Director exercises any function under this Act or Part 2 of Chapter 3 of the Criminal Procedure Act 1986 with respect to the prosecution of the offence (including in connection with a law enforcement officer seeking advice from the Director under section 14A of the Criminal Procedure Act 1986 about the commencement of proceedings for an offence).(2) The duty of disclosure continues until one of the following happens:(a) the Director decides that the accused person will not be prosecuted for the alleged offence,(b) the prosecution is terminated,(c) the accused person is convicted or acquitted.(3) Law enforcement officers investigating alleged offences also have a duty to retain any such documents or other things for so long as the duty to disclose them continues under this section. This subsection does not affect any other legal obligation with respect to the possession of the documents or other things.(4) The regulations may make provision for or with respect to the duties of law enforcement officers under this section, including for or with respect to:(a) the recording of any such information, documents or other things, and(b) verification of compliance with any such duty.(5) The duty imposed by this section is in addition to any other duties of law enforcement officers in connection with the investigation and prosecution of offences.(6) The duty imposed by this section does not require law enforcement officers to provide to the Director any information, documents or other things:(a) that are the subject of a claim of privilege, public interest immunity or statutory immunity, or(b) that would contravene a statutory publication restriction if so provided.(7) The duty of a law enforcement officer in such a case is to inform the Director of:(a) the existence of any information, document or other thing of that kind, and(b) the nature of that information, document or other thing and the claim or publication restriction relating to it.However, a law enforcement officer must provide to the Director any information, document or other thing of that kind if the Director requests it to be provided.(8) (Repealed)(9) In this section:law enforcement officer means a police officer, or a member of staff of one of the following agencies, who is responsible for an investigation into a matter that involves the suspected commission of an alleged offence:(a) the Law Enforcement Conduct Commission,(b) the New South Wales Crime Commission,(c) the Independent Commission Against Corruption.statutory publication restriction means a prohibition or restriction on publication that is imposed by or under:(a) section 176 (Disclosure and use of examination material) or 177 (Disclosure and use of evidence given at examination) of the Law Enforcement Conduct Commission Act 2016, or(b) section 45 or 45A of the Crime Commission Act 2012, or(c) section 112 of the Independent Commission Against Corruption Act 1988.s 15A: Ins 2001 No 7, Sch 2. Am 2011 No 65, Sch 1 [1]; 2012 No 80, Sch 1 [1]–[3]; 2015 No 15, Sch 3.20 [2]; 2016 No 61, Sch 6.16 [1]–[6]; 2017 No 55, Sch 3.4 [2].
16 Directions to police etc by Director
(1) The Director may, by order in writing, give directions referred to in subsection (2) to:(a) the Commissioner of Police, or(b) any other person who institutes or conducts prosecutions for offences.(2) Directions may be given requiring specified information or kinds of information to be referred to the Director for the purpose of enabling the Director to consider:(a) instituting or carrying on a prosecution or prosecutions for a specified offence or class of offences,(b) instituting, carrying on or taking over proceedings for a specified offence or class of offences, or(c) instituting, carrying on or taking over other proceedings in connection with functions conferred on the Director whether under this Act or otherwise.(3) A person to whom such a direction is given shall comply with the direction.(4) In this section:offence means an indictable offence or a prescribed summary offence.s 16: Am 1987 No 209, Sch 10 (2).
17 Provision of information to Director
(1) If a prosecution for an offence has been instituted by a person other than the Director and:(a) the Director informs the person that the Director is considering taking over the prosecution,(b) the Director takes over the prosecution, orthe person shall furnish to the Director the relevant information or material.(c) the person considers that the Director should take over the prosecution,(2) The relevant information or material is:(a) a full report of the circumstances of the matter,(b) a copy of the statements of any witnesses,(c) each material document in the possession of the person, and(d) such other information or material as the Director requires.
18 Request for assistance from police etc by Director
(1) If the Director is considering instituting or taking over, or has instituted or taken over, a prosecution for an offence, the Director may, by order in writing, request:(a) the Commissioner of Police, orto investigate or further investigate matters associated with the alleged commission of the offence.(b) any other person who:(i) conducts investigations in relation to offences, or(ii) institutes or conducts prosecutions for offences,(2) The Commissioner or other person shall, so far as practicable, comply with the request.
19 Indemnities and undertakings
(1) The Director may request the Attorney General to exercise the function of the Attorney General:(a) to grant indemnity from prosecution (whether on indictment or summarily), or(b) to give an undertaking that an answer, statement or disclosure will not be used in evidence.(2) The Director may not grant such an indemnity or give such an undertaking.
20 Other functions of Director
(1) The functions of the Director include the following:(a) to exercise such functions as are prescribed,(b) to do anything incidental or conducive to the exercise of any functions of the Director.(2) The Director may advise and assist any Crown Prosecutor, any member of the Police Force or, if so directed by the Attorney General, any other person in respect of the conduct of criminal proceedings.
20A Proceedings for order under Crimes (Domestic and Personal Violence) Act 2007
(1) The Director may institute and conduct, on behalf of an applicant, proceedings for an order under the Crimes (Domestic and Personal Violence) Act 2007 in the Local Court, the Children’s Court or the District Court.(2) Even if the Director does not institute and conduct such proceedings, the Director may:(a) institute and conduct, on behalf of an applicant, appeals in any court arising from such proceedings, and(b) conduct, on behalf of an applicant as respondent, appeals in any court arising from such proceedings.(3) This Act applies in relation to any proceedings for an order under the Crimes (Domestic and Personal Violence) Act 2007 as if the proceedings were a prosecution or proceedings in respect of an offence.s 20A: Ins 1996 No 93, Sch 2. Am 1998 No 149, Sch 2.6; 2006 No 73, Sch 3.10 [2]; 2007 No 80, Sch 2.11 [2]; 2007 No 94, Sch 2.
21 Appearances by and on behalf of Director
The Director may appear in person or may be represented by counsel or a solicitor in:(a) any proceedings which are conducted or carried on by the Director or to which the Director is otherwise a party, or(b) any inquest or inquiry in which the Director is assisting a coroner.
22 Functions of Deputy Directors
(1) A Deputy Director shall assist the Director, as the Director requires.(2) A Deputy Director has the same functions as a Crown Prosecutor.
23 Functions of Solicitor
The functions of the Solicitor are:(a) to act as solicitor for the Director in the exercise of the Director’s functions, and(b) to instruct the Crown Prosecutors and other counsel on behalf of the Director.
24 Offences under Commonwealth laws
If an Officer, with the consent of the Attorney General, holds an appointment, commission or authority to prosecute offences against laws of the Commonwealth, the Officer may institute and conduct (in accordance with the terms of the appointment, commission or authority) prosecutions for such offences.
Part 4 The Attorney General
25 Consultation
(1) The Director shall, if requested to do so by the Attorney General, consult with the Attorney General with respect to matters concerning the exercise of the Director’s functions.(2) The Attorney General shall, if requested to do so by the Director, consult with the Director with respect to matters concerning the exercise of the Director’s functions.
26 Guidelines by Attorney General
(1) In the exercise of the Director’s functions, the Director is subject to such guidelines as the Attorney General, after consultation with the Director, furnishes to the Director by order in writing.(2) Without limiting the generality of subsection (1), guidelines may relate to the circumstances in which the Director should institute or carry on prosecutions for offences.(3) A guideline may not be furnished in relation to a particular case.(4) If the Attorney General furnishes a guideline under this section, the Attorney General shall:(a) as soon as practicable after furnishing it, cause a copy of the order to be published in the Gazette, and(b) cause a copy of the order to be laid before each House of Parliament within 14 sitting days of that House after publication.(5) For the purposes of this section, sitting days shall be counted whether or not they occur during the same session.
27 Attorney General to notify Director of bills and no bills
(1) The Attorney General shall notify the Director whenever the Attorney General exercises any of the following functions:(a) finding a bill of indictment, or determining that no bill of indictment be found, in respect of an indictable offence, in circumstances where the person concerned has been committed for trial,(b) directing that no further proceedings be taken against a person who has been committed for trial or sentence,(c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial,(d) appealing under section 5D of the Criminal Appeal Act 1912 to the Court of Criminal Appeal against a sentence.(2) The Director shall include in a report under section 34 information as to the notifications received by the Director from the Attorney General under this section during the period to which the report relates.
28 Attorney General’s functions to prevail
(1) The Director shall not, without the consent of the Attorney General, exercise a function in a manner that is inconsistent with the manner in which the Attorney General has, after the commencement of this section, already exercised a function in relation to the same matter.(2) If the Attorney General has, before the commencement of this section, determined that no bill of indictment be found in respect of an offence, or has directed that no further proceedings be taken against a person in respect of an offence, the Director shall not exercise a function in a manner that is inconsistent with the determination or direction, unless the Director is satisfied that:(a) significant fresh evidence has been produced that was not previously available for consideration, orand that in all the circumstances it is in the interests of justice that the matter be re-opened.(b) the determination or direction was obtained by fraud,
29 Director may make request to Attorney General
If the Director considers it desirable in the interests of justice that the Director should not exercise certain functions in relation to a particular case, the Director may request the Attorney General to exercise the Attorney General’s corresponding functions.
30 Attorney General’s powers not affected
Nothing in this Act affects any functions of the Attorney General that the Attorney General has apart from this Act.
Part 5 Miscellaneous
31 Provisions relating to appointment etc of Director etc
Schedule 1 has effect.
32 Staff
Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Director and Solicitor to exercise their functions.Note—Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Director or Solicitor makes use of) may be referred to as officers or employees, or members of staff, of the Director or Solicitor. Section 47A of the Constitution Act 1902 precludes the Director and Solicitor from employing staff.s 32: Subst 2015 No 15, Sch 3.20 [3].
33 Delegation
(1) The Director may delegate to:(a) an Officer,(b) a Crown Prosecutor, orthe exercise of any of the Director’s functions (other than this power of delegation).(c) a person approved by the Attorney General,(2) The Director may not delegate the exercise of any of the following functions, except to a Deputy Director:(a) determining that no bill of indictment be found, in respect of an indictable offence, in circumstances where the person concerned has been committed for trial,(b) directing that no further proceedings be taken against a person who has been committed for trial or sentence,(c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial,(d) appealing under section 5D of the Criminal Appeal Act 1912 to the Court of Criminal Appeal against a sentence.(3) A delegation:(a) shall be in writing,(b) may be general or limited, and(c) may be revoked, wholly or partly, by the Director.(4) A delegate is, in the exercise of a delegated function, subject to such conditions as are specified in the instrument of delegation.(5) A delegated function, when exercised by the delegate, shall be deemed to have been exercised by the Director.(6) A delegation does not prevent the exercise of a function by the Director.(7) A function purporting to have been exercised by a delegate shall, until the contrary is proved be deemed to have been duly exercised by a delegate under this section.
34 Annual report
(1) As soon as practicable after 30 June, but on or before 31 December, in each year, the Director shall prepare and forward to the Attorney General a report of the work and activities of the Director for the 12 months ending on 30 June in that year.(2) The Attorney General shall lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.(3) The report shall not identify persons who have been the subject of consideration under this Act in relation to alleged offences, unless the persons have appeared before a court in relation to the alleged offences.
35 Protection from liability
(1) In this section:prescribed person means an Officer, a Crown Prosecutor or any person assisting an Officer or Crown Prosecutor.relevant law means this Act or any other Act or law to the extent that the other Act or law confers or imposes functions on the Director.(2) No matter or thing done by a prescribed person shall, if the matter or thing was done in good faith for the purpose of executing any relevant law, subject any prescribed person personally to any action, liability, claim or demand.(3) A prescribed person is entitled to be indemnified by the State for any costs awarded against the prescribed person personally in any proceedings in which the prescribed person is involved through the execution of any relevant law.
36 Savings and transitional provisions
(1) This Act applies to offences committed before the commencement of this subsection, as well as to offences committed afterwards.(2) Anything duly done by or in the name of the Attorney General before the commencement of this subsection is not affected by anything in this Act.(3) The person holding office as Solicitor for Public Prosecutions immediately before the commencement of section 6 shall be deemed to have been appointed as Solicitor for Public Prosecutions under this Act.(4) The amendments made to Schedule 1 by the Crown Law Officers Legislation Amendment (Abolition of Life Tenure) Act 2007 do not apply to a Senior Officer in respect of any office held by the Senior Officer immediately before the commencement of that Act.(5) Clause 10 of Schedule 1 (as amended by the Courts and Other Legislation Amendment Act 2011) extends to any appointment to the office of Director made on or after the day on which the Bill for that Act was first introduced into Parliament.(6) A person who holds office as a Deputy Director or the Solicitor immediately before the commencement of the Crown Law Officers Legislation Amendment (Retirement Age) Act 2011 and who was appointed for a specified term of office shorter than 7 years is taken to have been appointed for a term of 7 years.(7) Subsection (6) does not apply to the term of office of a person appointed to act as a Deputy Director or the Solicitor.(8) The amendments made to this Act by the Crown Law Officers Legislation Amendment (Retirement Age) Act 2011 do not affect any right preserved by this section to hold office beyond a retiring age provided by this Act.(9) The amendments made to this Act by the Courts and Crimes Legislation Amendment Act 2012:(a) extend to the person holding the office of Director immediately before the day on which the Bill for the Courts and Crimes Legislation Amendment Act 2012 was first introduced into Parliament, and(b) do not apply to or in respect of any person who ceased to hold office as Director before that day.(10) Section 15A (6), as inserted by the Director of Public Prosecutions Amendment (Disclosures) Act 2011, extends to proceedings for indictable offences commenced before the commencement of that subsection.(11) Anything done or omitted to be done before the commencement of section 15A (6), as so inserted, by a police officer, the Director or any other person having functions with respect to the prosecution of indictable offences, that would have been validly done or omitted if section 15A (6) had been in force at the time that it was done or omitted, is taken to have been validly done or omitted to be done.Note—For savings and transitional provisions relating to amendments made to this Act after 2011, see Schedule 2.s 36: Am 2007 No 51, Sch 1 [2]; 2011 No 8, Sch 1.2 [1]; 2011 No 34, Sch 1 [1]; 2011 No 65, Sch 1 [2]; 2012 No 11, Sch 1.3 [1]; 2012 No 80, Sch 1 [4] [5].
37 Regulations
(1) 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.(2) A provision of a regulation may:(a) apply generally or be limited in its application by reference to specified exceptions or factors,(b) apply differently according to different factors of a specified kind, oror may do any combination of those things.(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,(3) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:any Act that amends this Act(4) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.(5) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, 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.s 37: Am 2011 No 34, Sch 1 [2]; 2012 No 11, Sch 1.3 [2]; 2012 No 80, Sch 1 [6].
Schedule 1 Provisions relating to Senior Officers
(Section 31)
1 Definitions
In this Schedule:increased retirement age day means the day on which the amendments made to section 44 (Retirement of judicial officers) of the Judicial Officers Act 1986 by the Justice Legislation Amendment Act (No 3) 2018 commenced.office means the office of Director, Deputy Director or Solicitor.Senior Officer means the Director, a Deputy Director or the Solicitor.statutory body means any body declared under clause 12 to be a statutory body for the purposes of this Schedule.
2 Eligibility for appointment
(1) (Repealed)(2) A person is not eligible to be appointed as Director unless the person is an Australian lawyer of at least 7 years’ standing.(3) A person is not eligible to be appointed as a Deputy Director unless the person is an Australian lawyer of at least 5 years’ standing.(4) A person is not eligible to be appointed as Solicitor unless the person is an Australian lawyer of at least 5 years’ standing.(5) A person is not eligible to be appointed as a Senior Officer if the person is a member of the Legislative Council or the Legislative Assembly of New South Wales or is a member of a House of Parliament of another State or of the Commonwealth.
2A Term of office
(1) The Director is to be appointed by the Governor for a term of 10 years or for such shorter term as may be necessary to ensure that the person’s term of office extends to (but not beyond) the date on which the person reaches the age of 75 years.(2) A Senior Officer other than the Director is to be appointed by the Governor for a term of 7 years or for such shorter term as may be necessary to ensure that the person’s term of office extends to (but not beyond) the date on which the person reaches the age of 72 years.(3) The Director is not eligible for reappointment, including reappointment after the end of the Director’s term.(4) A Senior Officer other than the Director is eligible (if otherwise qualified) for reappointment.
3 Remuneration
(1) A Senior 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 Senior Officer.(2) The leave which may be granted to a Senior Officer shall be as the Attorney General may from time to time determine in respect of the Senior Officers.
4 Vacation of office
(1) A Senior Officer shall be deemed to have vacated office if the Officer:(a) dies,(b) resigns the office by instrument in writing addressed to the Governor, or(c) when the Officer is the Director—reaches the age of:(i) if the Director was appointed or reappointed before the increased retirement age day—72 years, or(ii) if the Director was appointed or reappointed on or after that day—75 years, or(c1) when the Officer is not the Director—reaches the age of 72 years, or(d) is removed from office by the Governor under subclause (2) or (3).(2) If a Senior Officer:(a) is nominated for election as a member of the Legislative Council or the Legislative Assembly of New South Wales or as a member of a House of Parliament of another State or of the Commonwealth,(b) 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,(c) becomes a mentally incapacitated person,(d) 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 Officer shall be removed from office by the Governor.(e) fails, without reasonable excuse, to comply with clause 5 or 6,(3) The Governor may remove a Senior Officer from office:(a) for incapacity, incompetence or misbehaviour, or(b) if the Officer 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 Senior Officer after the Officer has reached the applicable retirement age referred to in subclause (1) (c) or (c1) is nevertheless as valid as if the Officer had not reached that age.
5 Disclosure of interests
A Senior Officer shall give written notice to the Attorney General of all direct or indirect pecuniary interests that the Officer has or acquires in any business whether in New South Wales or elsewhere or in any body corporate carrying on any such business.
6 Other work
(1) A Senior Officer shall not, without the consent of the Attorney General:(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 Senior Officer shall not contravene or fail to comply with any conditions attached to any such consent.
The office of a Senior Officer is a statutory office and the Government Sector Employment Act 2013 (including Part 6) does not apply to that office.
8 Acting Senior Officers
(1) The Attorney General may appoint a person who is eligible for appointment as a Senior Officer to act in the office of that Senior Officer:(a) during a vacancy in that office, whether or not an appointment has previously been made to that office, or(b) during any period, or during all periods, when the person holding that office is absent from duty or from New South Wales or is, for any other reason, unable to exercise the functions of that office.(2) An appointment of a person under this clause may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.(3) 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 a Senior Officer, and(b) terminate such an appointment at any time.(4) A person may not act or be appointed to act under this clause for a period of more than 12 months at a time.(5) While a person is acting in the office of a Senior Officer, the person has and may exercise all the functions of the Officer and shall be deemed to be the Officer.(6) The validity of anything done by or in relation to a person purporting to act in the office of a Senior Officer under an appointment made under this clause shall not be called in question on the ground that:(a) the occasion for the appointment had not arisen,(b) there is a defect or irregularity in or in connection with the appointment,(c) the appointment had ceased to have effect, or(d) the occasion for the person to act had not arisen or had ceased.(7) A person may be appointed to act in the office of a Senior Officer (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.
9 Preservation of rights of Senior Officer previously public servant etc
(1) Subject to subclause (2) and to the terms of appointment, if a Senior Officer was, immediately before being appointed as a Senior Officer:(a) a Public Service employee, or(b) a contributor to a superannuation scheme, or(c) a member of staff of a statutory body, orthe Senior Officer:(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 a Public Service employee or member of staff of a statutory body,(e) retains any rights accrued or accruing to the Senior Officer as such an employee, contributor or member of staff, and(f) may continue to contribute to any superannuation scheme to which the Senior Officer was a contributor immediately before being appointed as a Senior Officer, andas if the Senior Officer had continued to be such an employee, contributor or member of staff during his or her service as a Senior Officer, and:(g) is entitled to receive any deferred or extended leave and any payment, pension or gratuity,(h) his or her service as a Senior Officer is taken to be service as an employee or member of staff for the purpose of any law under which those rights accrued or were accruing, under which the Senior Officer continues to contribute or by which that entitlement is conferred, and(i) the Senior Officer is taken to be an employee or member of staff for the purposes of the superannuation scheme to which the Senior Officer is entitled to contribute under this clause.(2) If a Senior Officer 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 Senior Officer or at any later time while holding office as a Senior Officer) 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 Senior Officer 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 employee or member of staff for the purposes of the scheme.(4) A Senior Officer 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.
10 Pension of Director
(1) The Judges’ Pensions Act 1953 applies, with any necessary adaptations, to a person who is or was Director (and the person’s spouse and children) in the same way as it applies to a person who is or was a judge (and the person’s spouse and children), except that:(a) section 3 of that Act applies to a person who vacated the office of Director under clause 4 (1) (c) after serving as Director for not less than 5 years, and(b) section 4 of that Act applies as follows:(i) for a person appointed Director before the increased retirement age day—section 4 (1) applies to the person if the person ceased to hold office as Director after having reaching the age of 60 years and serving as Director for not less than 10 years as if a reference in that subsection to retiring at the mandatory judicial retirement age were a reference to having vacated office under clause 4 (1) (c),(ii) for a person appointed Director on or after the increased retirement age day—section 4 (2) applies to the person if the person ceased to hold office as Director after having attained the age of 65 years and serving as Director for not less than 10 years as if a reference in that subsection to retiring at the mandatory judicial retirement age were a reference to having vacated office under clause 4 (1) (c), and(c) section 5 of that Act applies to a person who held office as Director as if a reference in section 5 (2) to having attained the mandatory judicial retirement age and then retired were a reference to having vacated office under clause 4 (1) (c) (regardless of whether the person’s term of office would have expired before the person could have attained the mandatory judicial retirement age), and(d) section 6 of that Act applies to a person who died while holding office as Director as if a reference in section 6 (5) to having attained the mandatory judicial retirement age and then retired and died were a reference to having vacated office under clause 4 (1) (c) and died (regardless of whether the person’s term of office would have expired before the person could have attained mandatory judicial retirement age).(2) The following provisions apply if a person who is or was a judge becomes Director or a person who is or was Director becomes a judge:(a) in the case of a Director or former Director who becomes a judge (whether or not for the first time):(i) any period served by that person as Director is, for the purposes of the Judges’ Pensions Act 1953, to be computed as portion of the person’s service as a judge in the judicial office that the person holds immediately before the person’s retirement as a judge or death before such retirement (as the case may be), and(ia) for a person who was appointed as Director before the increased retirement age day—section 4 (1) of the Judges’ Pensions Act 1953 applies to the person instead of section 4 (2) of that Act even if the person was appointed as a judge on or after that day, and(ii) the right to any pension that the person is receiving, or is entitled to receive, under the Judges’ Pensions Act 1953 (as applied by this clause) in his or her capacity as Director or a former Director ceases,(b) in the case of a judge or former judge who becomes Director:(i) any period served by that person as a judge is, for the purposes of the Judges’ Pensions Act 1953 as applied by this clause, to be computed as portion of the person’s service as Director where the person holds that office immediately before the person’s retirement as Director or death before such retirement (as the case may be), and(ia) for a person who was appointed as a judge before the increased retirement age day—section 4 (1) of the Judges’ Pensions Act 1953 as applied by this clause applies to the person instead of section 4 (2) of that Act even if the person was appointed as Director on or after that day, and(ii) the right to any pension that the person is receiving, or is entitled to receive, under the Judges’ Pensions Act 1953 in his or her capacity as a judge or former judge ceases.(3) Subclauses (1) and (2) do not apply to:(a) a person who elects, pursuant to subclause (5), to continue to contribute under another superannuation scheme, or(b) a person acting in the office of Director.(4) The Director is not, subject to subclause (5), an employee for the purposes of another superannuation fund.(5) A person appointed to be Director who, at the date of the appointment, was a contributor under another superannuation scheme may elect to continue to contribute under that scheme, and if the person so elects the person shall be deemed to be an employee for the purposes of that scheme.(6) In this clause:judge has the same meaning as in the Judges’ Pensions Act 1953.spouse has the same meaning as in the Judges’ Pensions Act 1953.superannuation scheme has the same meaning as STC fund or STC scheme has in the Superannuation Administration Act 1996.
11 Senior Officer entitled to reappointment to former employment in certain cases
(1) A person who:(a) ceases to be a Senior Officer by resignation or completes a term of office as Senior Officer and is not reappointed, and(b) was, immediately before being appointed as a Senior Officer, a Public Service employee or member of staff of a statutory body,is entitled to be employed in the Public Service or as a member of staff of that statutory body, as the case requires, at a work level and salary not lower than the level at which the person was employed immediately before being appointed as a Senior Officer.(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 employee or member of staff referred to in subclause (1) (b), andthe person shall have such rights, if any, to employment as such an employee or member of staff, in the event of ceasing to be a Senior Officer, as are specified in the instrument of appointment as a Senior Officer or as are agreed on by the person and by or on behalf of the Government.(b) is after that appointment appointed as a Senior Officer,
12 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 1987 No 48, Sch 30; 1990 No 99, Sch 4; 1991 No 17, Sch 2; 1993 No 87, Sch 5; 1999 No 94, Sch 4.106; 2005 No 31, Sch 14.1; 2007 No 51, Sch 1 [3]–[11]; 2009 No 49, Sch 2.20; 2011 No 8, Sch 1.2 [2] [3]; 2011 No 34, Sch 1 [3]–[5]; 2012 No 11, Sch 1.3 [3] [4]; 2015 No 15, Sch 3.20 [4]–[10]; 2018 No 87, Sch 2.1 [1]–[8].
Schedule 2 Savings, transitional and other provisions
Part 1 Provision consequent on Director of Public Prosecutions Amendment (Disclosures) Act 2012
1 Application of amendments
An amendment made to section 15A or the Director of Public Prosecutions Regulation 2010 by the Director of Public Prosecutions Amendment (Disclosures) Act 2012 extends to an alleged indictable offence that a law enforcement officer investigated, or started to investigate, before the commencement of the amendment if the Director first exercises a function under this Act, in respect of the prosecution of the offence, after the commencement of the amendment.
sch 2: Ins 2012 No 80, Sch 1 [7].